Farah (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The visa applicant, a citizen of Yemen residing in the UAE, sought to marry the review applicant, an Australian citizen. The core of the dispute revolved around whether the parties genuinely intended to marry and live together as spouses, and whether their relationship was genuine and continuing, despite a significant period of limited face-to-face contact.

The Tribunal was required to determine if the parties had a genuine intention to marry and live together as spouses, and if their relationship was genuine and continuing. This involved assessing the evidence presented regarding their communication, their stated intentions, and the reasons for their prolonged physical separation. The Tribunal also had to consider the impact of various factors, including the COVID-19 pandemic, financial constraints, and the review applicant's caregiving responsibilities for her son with disabilities, on their ability to meet in person.

The Tribunal found compelling evidence that the parties had maintained regular contact over the years, including during the pandemic, and that they presented to their friends and families as being in a committed relationship. Despite the limited documentary evidence supporting their claims, largely attributed to their lack of face-to-face contact since 2017, the Tribunal accepted their explanations for this separation. These explanations included limited financial resources, the review applicant's inability to travel without her children, border closures, increased travel costs, and the cost of living crisis. The Tribunal was satisfied that the parties genuinely intended to live together as spouses and that their relationship was genuine.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met specific criteria for a Subclass 300 visa, including cl.300.211, cl.300.214, cl.300.215, cl.300.216, and cl.300.221 of Schedule 2 to the Regulations.