Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of Mr Lat Nguyen, a Vietnamese national, and Ms Thi Van Nguyen, an Australian citizen, who sought a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The central dispute concerned whether the applicants genuinely intended to marry and live together in a spousal relationship, and whether there was any legal impediment to their marriage under Australian law.

The Tribunal was required to determine two primary issues: first, whether the applicants possessed a genuine intention to marry and form a spousal relationship; and second, whether there existed any legal impediment to the marriage, specifically concerning the sponsor's previous marriage. The Tribunal noted that a legal impediment could arise if a party was already married and their previous marriage had not been properly dissolved, referencing section 23B of the Marriage Act 1961.

In its reasoning, the Tribunal expressed significant concerns regarding the evidence provided to demonstrate the sponsor's divorce from her second husband. While a document purporting to be a certified copy of a divorce certificate was submitted, it was unsigned and unsealed. Although the Tribunal is not strictly bound by the Evidence Act 1995, it found the lack of a seal or signature on the divorce document problematic, raising doubts as to whether the sponsor's previous marriage had been validly dissolved and if she was therefore free to marry. Despite these concerns, the Tribunal proceeded to consider other visa criteria.

Ultimately, the Tribunal concluded that the visa applicant did not satisfy the criteria for the grant of the visa. Consequently, the Tribunal affirmed the decision not to grant Mr Lat Nguyen a Prospective Marriage (Temporary) (Class TO) visa.