Bayram (Migration)

The Administrative Appeals Tribunal considered an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant sought review of a delegate's decision that found insufficient evidence to demonstrate the parties genuinely intended to live together as spouses, as required by clause 300.216 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the parties genuinely intended to live together as spouses at the time of the visa application. In doing so, the Tribunal considered the definition of "spouse" under section 5F of the Migration Act 1958, which requires a married relationship characterised by mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also had regard to considerations for spousal relationships under regulation 1.15A(3) of the Regulations, applying them to assess the parties' future intentions.

The Tribunal found that the parties demonstrated a genuine intention to share responsibility for their household and finances, noting evidence of financial support and shared living arrangements during COVID-19 lockdowns. The Tribunal also considered the parties' history of living together and their communication, including regular translated communication and the booking of a marriage celebrant, as indicators of their genuine intentions. Based on these findings, the Tribunal concluded that the applicant met the criteria under clause 300.216.

Consequently, the Tribunal remitted the application for the Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister, with a direction that the applicant meets the criteria under clause 300.216 of Schedule 2 to the Regulations.