Lam (Migration)

The Administrative Appeals Tribunal considered an application for a Prospective Marriage (Temporary) (Class TO) visa made by the applicant, whose sponsor was also a party to the proceedings. The dispute concerned whether the applicant met the criteria for the visa, specifically regarding the genuine intention to marry and the genuine intention to live together as spouses.

The Tribunal was required to determine if the parties genuinely intended to marry within the visa period, as stipulated by clause 300.215 of the relevant regulations. Furthermore, the Tribunal had to assess whether the parties genuinely intended to live together as spouses at the time of application, as required by clause 300.216, considering the definition of a spouse under section 5F of the Migration Act 1958 (Cth).

In its reasoning, the Tribunal found that the parties had demonstrated a genuine intention to marry, evidenced by a Notice of Intended Marriage and a subsequent letter indicating a proposed marriage date within the visa period. However, regarding the intention to live together as spouses, the Tribunal noted a lack of evidence of joint financial commitments, such as shared assets or liabilities, although it acknowledged some financial transfers between the parties. The Tribunal gave limited weight to financial aspects due to the parties residing in separate countries.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 300.221 of Schedule 2 to the Regulations.