Duong (Migration)

[2017] AATA 2119

Duong (Migration) [2017] AATA 2119 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Gia My Duong

VISA APPLICANT:  Mr Thanh Hai Nguyen

CASE NUMBER:  1600994

DIBP REFERENCE(S):  BCC2014/3595629

MEMBER:Justine Clarke

DATE:3 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 03 November 2017 at 12:55pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective marriage) – Genuine intention to marry – Intention to share housework – Joint responsibility for the support of the children

LEGISLATION
Migration Act 1958, ss 5F, 65, 359(2)
Migration Regulations 1994, r 1.15A(3), r 1.15A(4), Schedule 2, cl 300.211, cl 300.214, cl 300.215, cl 300.216, cl 300.221

CASES

Jayasinghe v MIMA [2006] FCA 1700
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time of this decision, the visa applicant, Mr Thanh Hai Nguyen, is a 50 year old national of Vietnam.   

3. On 31 December 2014, Mr Nguyen applied for the visa on the basis of his prospective marriage to his sponsor, the review applicant, Mrs Gia My Duong, who is, at the time of this decision, a 53 year old Australian citizen.

4. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include 300.215, 300.216 and 300.221.

5. On 27 January 2016, the delegate refused to grant the visa because the delegate was not satisfied that the parties genuinely intended to marry or live together as spouses. Accordingly, the delegate found that the visa applicant did not satisfy clauses 300.215, 300.216 or 300.221 of Schedule 2 to the Regulations.

6. On 28 January 2016, Mrs Duong applied to the Tribunal for review of the primary decision. She was represented in relation to the review by her registered migration agent.

7. On 31 October 2017, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nguyen (by telephone from Vietnam) and Mr Duong, Nguyen Gia Vu (Mrs Duong’s son); Ms Le, Bach Sonha (Mrs Duong’s friend); Ms Nguyen, Hoang Phuong (Mr Nguyen’s niece); Mrs Chu, Thi Mui (Mr Nguyen’s mother) and Ms Nguyen, Thi Minh Nguyet (Mr Nguyen’s sister). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case are whether:

   ·at the time of application, Mr Nguyen and Mrs Duong genuinely intended to marry each other within the visa period—cl.300.215;

   ·at the time of application, Mr Nguyen and Mrs Duong genuinely intended to live together as spouses—cl.300.216; and

   ·at the time of decision, Mr Nguyen continues to satisfy the criteria in cl.300.211 (that is, intention to marry an eligible person), cl.300.214 (that is, that the parties are known to each other personally) and clauses 300.215 and 300.216 (outlined above)—cl.300.221.

   Evidence submitted

10. On 14 September 2017, the Tribunal wrote to Mrs Duong, by way of her registered migration agent, pursuant to s.359(2) of the Act, inviting her to provide further information to support her claims that she and her partner genuinely intend to marry and live together as spouses and that they are known to each other personally.

11. The letter included an information sheet, entitled ‘Information about your relationship which may be considered by us’, which outlined intentions with regard to the factors in r.1.15A(3) (which provides a range of factors for decision-makers to consider when determining whether a spousal relationship exists). The information sheet included factors to consider with respect to intended financial aspects of the relationship when the parties are married, the intended nature of the household after the marriage, the intended social aspects of the marriage and the nature of the parties’ commitment to each other.

12. On 28 September 2017, within the permitted period for responding, Mrs Duong’s representative provided written submissions as well as much documentary and photographic evidence to the Tribunal.

13. At the hearing, the representative submitted original copies of the material that had been scanned and sent earlier. The Tribunal notes that voluminous material was submitted,  including:

    ·documents relevant to the intended nature of the household after the marriage, including:

    ooriginal document and translation of the same document into the English language entitled ‘Temporary residence registration for foreigner’, dated 21 October 2014, and giving details of where Mrs Duong was registered as staying from 21 October 2014 to 6 November 2014 and that Mr Nguyen was the representative of the place where Mrs Duong was staying;

    ·documents relevant to the intended social aspects of the relationship, including:

    omany pages of photographs of the parties together in a variety of settings (including in Australia and in Vietnam), most with accompanying descriptions, and many showing them together with others;

    oan original document and translation of the same document into the English language entitled ‘letter of thanks’ and dated 30 October 2014 which evidences Mr Nguyen and Mrs Duong as having donated items for the poor at a festival and gives details of Mr Nguyen’s address;

    ·documents evidencing the nature of the parties’ commitment to each other, including:

    ocopies of some greeting cards and copies of many envelopes addressed to Mr Nguyen, many showing that Mrs Duong as the sender and a number of envelopes addressed to Mrs Duong and showing Mr Nguyen as the sender—the accompanying description of this material was that it was ‘mail correspondence between applicant and sponsor on special occasions such as Xmas, birthdays, New Year;

    oscreenshots of text messages and online communications between the parties;

    ophotographs from the parties’ formal engagement party in Vietnam in 2016; and

    omany pages of phone bills for both parties (including information about each party’s number and Mrs Duong’s former number).

14. The Tribunal is mindful that it has had the benefit of substantially more evidence than what was submitted to the Department in this matter.

    Do the parties genuinely intend to marry?

15. Clause 300.215 requires that, at the time of application, the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.

16. The primary decision states that, on 2 November 2015 at the parties’ interview in Vietnam, the applicant stated that they would hold a wedding in Australia in December 2015. The primary decision also states that the delegate was satisfied that ‘the applicant and the sponsor have submitted a legal intention to marry form’. However, curiously, the delegate concluded:

    I have considered clause 300.215 and find that the applicant meets neither subclause (a) nor (b). They were unable to provide evidence or information which allowed me to reasonably establish that they have a genuine intention to marry the sponsor nor that the marriage was going to take place within the visa period.

17. The Tribunal is concerned that contradictory information is given in the primary decision about whether a legal intention to marry form had been submitted to the Department.

18. The Tribunal notes that there is no copy of any such form on the hard copy of the Department’s file that has been provided to the Tribunal. Notwithstanding, the Tribunal notes that on the evidence outlined in the primary decision—namely Mr Nguyen’s oral evidence and the reference to a form having been submitted—it is open to the Tribunal to find that, at the time of application, the parties had a genuine intention to marry, and that the marriage was intended to take place within the visa period.

19. As will be detailed further below, the parties have also submitted a copy of a ‘Notice of Intended Marriage’ form to the Tribunal. This document is dated 1 April 2017 and gives details of a marriage arranged for 12 May 2018 in Sunshine West in Melbourne. The Tribunal is mindful that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J, cited by Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at [35].

20. In the circumstances, the Tribunal is satisfied that the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

21. Clause 300.216 requires that, at the time of application, ‘the parties genuinely intend to live together as spouses’.

22. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship must be genuine and continuing; and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)–(d).

23. In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

24. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

    The financial aspects of the relationship

25. The written submissions stated the following with respect to the financial aspects of the relationship:

    Where the applicant and the sponsor are unable to live together, the relevant financial matters can only be any financial contributions made by one party to the other. In this case, as both Ms Duong and Mr Nguyen are financially independent, there are no money transfers to be sent to each other. Their plan is that upon Mr Nguyen’s arrival in Australia, he will look for work immediately and they will of course [have] joint ownership of all their assets including any joint liabilities. 

26. The Tribunal is mindful that each of the matters in r.1.15A(3)(a)–(d) are not ‘criteria’ which must be ‘met’. Rather, r.1.15(4) provides that, in a case such as the current one for a Class TO Subclass 300 visa, they are simply ‘circumstances’ which may be considered.

27. The Tribunal accepts that the parties’ circumstances—living in different countries and being engaged rather than married—have been such that they have had little need or opportunity to pool their finances and arrange joint ownership of assets. The Tribunal accepts that the parties have had no need to send money transfers to one another and looks favourably upon their decision not to generate documentary evidence that they consider may assist Mr Nguyen’s migration outcome but which is not actually needed in their lives.

28. Mr Nguyen gave oral evidence that, if he is granted the visa, he intends to send his money from Vietnam and put it into a joint account that he and Mrs Duong will open. He said that their intention would be to buy a house. Mrs Duong gave broadly consistent oral evidence, telling the Tribunal that they would open a bank account together, share daily expenses and try to save money with the aim of buying a house together (noting that she is in public housing at present). This evidence suggests that the parties intend to pool their financial resources in the future. The Tribunal is satisfied that the parties intend to pool their financial resources, especially in relation to major financial commitments such as possibly buying a house, in Australia.

29. Overall, the Tribunal finds that the applicants’ financial arrangements are consistent with what would be reasonably expected of persons in their circumstances.

30. The Tribunal places a little weight on this factor in concluding that, at the time of application, the parties genuinely intended to live together as spouses.

    The nature of the household

31. The persons’ living arrangements, any sharing of the responsibility for housework and any joint responsibility for the care and support of children are relevant considerations when assessing the nature of the household. As explained earlier, it is the parties’ future intentions with regard to these aspects which are relevant.

32. At present, Mrs Duong and Mr Nguyen live in different countries. The parties met in Australia in August 2014 and, as noted in the primary decision, the parties travelled together from Australia to Vietnam on 17 October 2014. They claim that, on 5 November 2014, they agreed to marry. After this, Mrs Duong visited Mr Nguyen in Vietnam on three subsequent occasions. The material submitted to the Tribunal states that this was in February 2016 (and that they had their formal engagement party on 5 March 2016), June 2016 and February 2017. Mrs Duong’s movement records corroborate this claim as she departed Australia on 28 February 2016 and returned on 11 March 2016, departed again on 10 June 2016 and returned on 1 July 2016 and her last trip saw her depart Australia on 22 February 2017 and re-enter on 9 March 2017.

33. The Tribunal notes that the delegate gave this factor ‘little’ weight in the primary decision because the parties had ‘only spent a period of approximately 76 days in the company of one another since first meeting and only one week days [sic] in the same country as one another since they were engaged’ and accordingly, the delegate considered that ‘it is difficult to demonstrate that the nature of their household is that of prospective spouses’.

34. The Tribunal notes the written submissions filed with the Tribunal which state that, ‘[s]ince her engagement with Mr Nguyen, on each trip to Vietnam, Ms Duong stayed at his home address’. Mrs Duong also told the Tribunal that she had lived with Mr Nguyen in Thu Duc on the occasions when she visited Vietnam. The Tribunal notes that there is some corroborating evidence in this respect, namely the temporary residence certificate referred to earlier. The Tribunal also accepts the written submission that ‘evidence of their living together is well documented in photographs during the time Ms Duong stayed in Vietnam with Mr Nguyen’. The Tribunal finds that the parties lived together for the periods claimed and notes that the duration of their living together is greater than was the case when the delegate considered the matter.

35. The Tribunal asked both parties questions about their intentions with respect to their future living arrangements and the responsibility for housework. Mrs Duong gave oral evidence that, if Mr Nguyen is granted the visa and permitted to come to Australia, that they will live together in her house in Richmond. Mr Nguyen gave consistent oral evidence, stating that initially they will live at Mrs Duong’s house but he noted their intention to purchase a house.

36. With respect to any intended sharing of the responsibility for housework, Mrs Duong said that they would both do housework. She said that Mr Nguyen would perform the heavier duties and that she would do the ‘gentler’ jobs. Both parties noted that Mrs Duong likes to tidy her house in her spare time. Mr Nguyen also told the Tribunal that he would undertake the ‘heavy’ housework and mow the lawn. The Tribunal notes that Mrs Duong told the Tribunal about the pain she suffers in her arms (and when the Tribunal was informed that Mrs Duong was in some discomfort during the hearing, it encouraged her to stand or move about the hearing room as she needed). Mr Nguyen also told the Tribunal that Mrs Duong is waiting for an operation for surgery on one of her arms and that he had told her that when he is in Australia that he would help her by doing the ‘heavy’ housework. The Tribunal accepts the parties’ oral evidence about their intention to share housework when they live together in Australia.   

37. Mr Nguyen has no children but Mrs Duong has two children. She told the Tribunal that her daughter currently lives with her. Mrs Duong’s son attended the hearing in person and told the Tribunal that he is also living at the house at the moment but that this is a temporary arrangement. Both Mrs Duong and Mr Nguyen gave broadly consistent oral evidence as to their future intentions with respect to joint responsibility for the support of Mrs Duong’s children. Mrs Duong told the Tribunal that her children have no contact with their biological father or her former husband. She said that if Mr Nguyen was permitted to come to Australia that he would play the role of a father figure to them. Mr Nguyen told the Tribunal that, since he does not have any children of his own, he would love Mrs Duong’s children as his own.    

38. The Tribunal gives the parties’ intentions with respect to the future nature of the household some weight in concluding that at the time of application the parties genuinely intended to live together as spouses.

    The social aspects of the relationship

39. The opinion of the persons’ friends and acquaintances about the nature of the relationship is a relevant factor to consider. The Tribunal notes that many witnesses attended the hearing in person in order to give oral evidence in support of this review. This suggests that the relationship is acknowledged and supported by these family members and friends. The Tribunal notes that Mr Nguyen’s mother told the Tribunal that when Mr Nguyen told her that he was in a relationship with Mrs Duong that she had been happy because Mrs Duong is ‘a gentle person’.  

40. On the basis of the oral evidence, the Tribunal finds that the parties have communicated the existence of their relationship to their close family members and to Mrs Duong’s friend Ms Le and that these persons consider the relationship to be genuine and continuing.

41. The Tribunal gives the evidence of the applicants’ friends’ and acquaintances’ opinions about the nature of the relationship weight in concluding that, at the time of application, the parties genuinely intended to live together as spouses.

    The nature of the person’s commitment to each other

42. The duration of the relationship and the length of time during which the persons have lived together are both aspects to be considered in determining the nature of the person’s commitment to each other.

43. The Tribunal questioned both parties about the inception of their relationship, noting that the delegate had expressed concerns about the rapidity of the relationship development. Mrs Duong gave oral evidence that in a way the relationship had developed quickly but she said that this was due to their mature age. By contrast, Mr Nguyen said that it had not been rushed and that he genuinely loves Mrs Duong and that he had found the woman that he wants to have as his wife.

1. The Tribunal finds that the parties have been in a relationship since at least 8 October 2014, which is the date that, at the time of application, they both gave as the date that they committed to a shared life to the exclusion of all others. At the hearing, Mrs Duong told the Tribunal that this is the date that they became boyfriend and girlfriend as it was the day that Mr Nguyen had expressed his feelings towards her. She was able to provide detail about this occasion, stating that they had been at Chelsea beach for a BBQ with various family members (who she was also able to name).

2. The Tribunal also questioned them about whether Mr Nguyen was still in a relationship with his former wife. The Tribunal accepts their oral evidence that Mr Nguyen is not in a relationship with his former wife. Mr Nguyen told the Tribunal that he and his former wife had been separated for one and a half years prior to the divorce. He said that he is not in contact with his former wife and said that when they were together that they had many disagreements. Mr Nguyen’s sister similarly told the Tribunal that Mr Nguyen’s marriage had not been a happy one. She told the Tribunal that, from what she could observe, Mr Nguyen seemed much happier now.

3. The Tribunal notes that the relationship has endured—despite the parties living in different countries and spending much time apart—for over three years.

4. As noted earlier, the Tribunal has found that the parties lived together when Mrs Duong visited Mr Nguyen in Vietnam on a number of occasions. While the length of time that they have lived together is quite short compared to the duration of the relationship, the Tribunal does not consider that it necessarily weighs against a positive finding about the nature of the commitment.

5. The degree of companionship and emotional support that the persons draw from each other is another factor listed in r.1.15A(3). Mrs Duong told the Tribunal that they were both lonely and said that they talked to each other and supported each other a lot. Both parties gave consistent oral evidence that they speak to each other several times a week. Mrs Duong said that they contact each other by phone and Mr Nguyen was more specific noting that they had used the phone in the past but now use Viber because there is no cost involved with that medium. They also gave consistent oral evidence about who calls the other (each saying that they took it in turns and that it depended on which one had spare time) and the duration of their calls (both saying that it could vary from 15 minutes to an hour or two hours). The Tribunal notes that the documentary evidence submitted of the parties’ communication between each other is extensive. The Tribunal accepts the parties’ oral evidence which is corroborated by documentary evidence.

6. Both parties were able to provide the Tribunal with details of emotional support that they had drawn from the other. Mrs Duong said that if something happens which upsets her—for instance, with respect to her children—that Mr Nguyen supports her. She also said that he offers her comfort in respect of her medical condition (the pain in her arms). Mr Nguyen told the Tribunal about the time that he had a motorcycle accident in 2016 and said that Mrs Duong had provided him with emotional support at that time.

7. Whether the persons see the relationship as a long-term one is another factor listed in r.1.15A(3). When the Tribunal asked both parties whether they saw the relationship as long-term, they replied in the affirmative. Mr Nguyen told the Tribunal that both he and Mrs Duong had thought carefully about pursuing the relationship. He said that they are very close and really love and treasure each other. Mrs Duong said that they had both been single and that she had been lonely. She said that she felt that she could trust and rely upon Mr Nguyen. In view of the parties’ oral evidence provided at the hearing, the Tribunal finds that at the time of this decision, both Mr Nguyen and Mrs Duong view their relationship as long term.

8. The Tribunal questioned both applicants, in depth, about their knowledge of each other and their lives and is satisfied that both Mrs Duong and Mr Nguyen demonstrated a good knowledge of the other.

9. The Tribunal notes that, in the primary decision, the delegate outlined concern that the circumstances indicated that the relationship was being used as a pathway for Mr Nguyen to be granted a visa so that he could be reunited with his relatives in Australia. Both parties gave oral evidence that their relationship is a genuine relationship. Mrs Duong noted that her children had grown older and that she felt that Mr Nguyen was a person whom she could trust to spend the remainder of her life with. Mr Nguyen said that they wanted to be together and added that he really worried about Mrs Duong, noting that she was ‘just a tiny lady’. Further, the Tribunal notes the oral evidence of Ms Nguyen (Mr Nguyen’s niece) that while a desire by Mr Nguyen to be reunited with his family may be a factor in his wanting to come to Australia, that it is not the primary reason. She said that his relationship with Mrs Duong is the main reason. She was in no doubt that their relationship is genuine and continuing. The Tribunal accepts Ms Nguyen’s oral evidence and does not share the concern expressed by the delegate in the primary decision.

10. The Tribunal found both parties to be credible. The Tribunal notes that the parties gave consistent oral evidence but, despite similarities, did not appear to be rehearsed but rather natural. The Tribunal accepts the parties’ oral evidence that they are in a genuine relationship.

11. For these reasons—particularly the frequency of their communication and Mrs Duong’s trips to Vietnam to see Mr Nguyen—the Tribunal places great weight on the nature of each person’s commitment to the other in concluding that, at the time of application, the parties genuinely intended to live together as spouses.

12. On the basis of the above, the Tribunal is satisfied that, at the time of the visa application, the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

13. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

    The visa applicant intends to marry an eligible person—cl.300.211

14. Mrs Duong told the Tribunal that she is an Australian citizen and a copy of her Certificate of Australian Citizenship is on the Department’s file. The Tribunal is satisfied that she is an Australian citizen.

15. Mr Nguyen gave oral evidence that he intends to marry Mrs Duong—which the Tribunal finds to be true. At the time of this decision, the visa applicant continues to meet cl.300.211.

    The parties have met and are known to each other personally—cl.300.214

16. The Tribunal refers to the evidence mentioned earlier—namely, both parties’ oral evidence at the hearing as well as photographs of them together in Australia and Vietnam—and on this basis is satisfied that Mr Nguyen and Mrs Duong have met in person since each of them turned 18 and are known to each other personally. At the time of this decision, the visa applicant continues to meet cl.300.214.

    The parties genuinely intend to marry and intend to do so during the visa period—cl.300.215

17. When the Tribunal asked the parties about their wedding plans, they each responded in a similar way. Mr Nguyen told the Tribunal that when he is permitted to come to Australia, that they plan to marry. He explained that they plan to marry on 12 May 2018 which is around the time of Mrs Duong’s birthday (the Tribunal notes that Mrs Duong’s birthday is a couple of days before that date). He said that their custom is for the marriage to take place at the groom’s house so they will marry at his mother’s house in Melbourne. Mrs Duong gave consistent oral evidence. She said that it they are permitted, they will marry in Australia on 12 May 2018 at Mr Nguyen’s family’s house. She said that, in accordance with Vietnamese tradition, they would have an altar in the house and a Buddha (they are both Buddhists) and that there would be a marriage celebrant. The Tribunal notes that the ‘Notice of Intended Marriage’ form that was submitted to the Tribunal corroborates their claimed plans to marry at a home in Melbourne on 12 May 2018 and have a marriage celebrant officiate.

18. When the Tribunal questioned Mrs Duong about why they had not married already, she said that they both wanted to get married in Australia. She said that her reason for wanting to get married in Australia rather than Vietnam is because her mother is in Australia. (She noted that Mr Nguyen had met her mother once or twice).

19. On the basis of the evidence before it, the Tribunal finds that, at the time of this decision, the parties genuinely intend to marry each other. A prospective marriage visa is valid for nine months. The Tribunal finds that the parties intend to marry during the visa period. At the time of this decision, the visa applicant continues to meet cl.300.215.

    The parties genuinely intend to live together as spouses—cl.300.216

20. Some of the evidence outlined with respect to the factors in r.1.15A(3) relates to the time of decision so is relevant here. The Tribunal finds that, at the time of this decision, Mr Nguyen and Mrs Duong genuinely intend to live together as spouses. At the time of this decision, the visa applicant continues to meet cl.300.216.

21. Accordingly, cl.300.221 is met.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

23. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.215 of Schedule 2 to the Regulations

    ·cl.300.216 of Schedule 2 to the Regulations

    ·cl.300.221 of Schedule 2 to the Regulations

    Justine Clarke
    Member