MEBRAHTU (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant, who was 16 years old when first meeting the sponsor, and the sponsor, who was 18, had commenced a relationship in Ethiopia. The sponsor, who had since returned to Australia, sought to marry the applicant in Australia to facilitate family involvement in the celebrations, as her family resided there. The sponsor had made several visits to Ethiopia since their engagement in 2013, providing financial remittances to the applicant. The Tribunal was tasked with determining whether the parties genuinely intended to live together as spouses, as required by clause 300.216 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant and sponsor genuinely intended to live together as spouses at the time of the visa application. This required the Tribunal to consider the definition of "spouse" under section 5F of the Migration Act 1958, which includes a mutual commitment to a shared life as a married couple to the exclusion of all others, and the requirement to live together or not live separately and apart on a permanent basis. The Tribunal was also permitted to have regard to considerations for spousal relationships outlined in regulation 1.15A(3) when assessing the parties' future intentions.

The Tribunal considered the limited financial resources of both parties, noting the sponsor's casual employment and Centrelink payments, and the applicant's rural circumstances. It found that it was unreasonable to expect them to have acquired significant joint assets. The Tribunal placed considerable weight on the sponsor's repeated use of her limited financial resources to visit the applicant and her provision of remittances as indicators of commitment. The Tribunal also noted the spontaneous evidence from a close friend of the sponsor and the credibility of witnesses.

Ultimately, the Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa to the Minister for reconsideration. The Tribunal directed that the applicant met the criteria under clauses 300.211 and 300.221 of Schedule 2 to the Regulations.