Kamara (Migration)

The Administrative Appeals Tribunal considered an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant, a citizen of Liberia, sought to enter Australia to marry the sponsor, an Australian citizen. The secondary applicant was the applicant's step-brother. The core dispute revolved around whether the applicant and sponsor genuinely intended to live together as spouses, as required by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties had a genuine intention to live together as spouses at the time of the application. This involved considering the definition of a "married relationship" under section 5F of the Migration Act, which includes a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal could also have regard to considerations for spousal relationships outlined in regulation 1.15A(3).

Despite the sponsor's significant speech and hearing difficulties, the Tribunal found his evidence, along with that of his family, to be consistent, compelling, and plausible. The Tribunal accepted that the sponsor, despite his physical limitations, possessed intelligence, humour, and warmth, and demonstrated a genuine affection for the applicant and a sincere intention to live with her as his spouse in Australia. The Tribunal noted the parties had entered into a Sharia marriage and had lived together in Africa on two occasions.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the primary visa applicant met several criteria for the subclass 300 visa, including the requirement for a genuine intention to live together as spouses. No findings were made regarding the secondary applicant, whose application was directed to the department for assessment.