Nguyen (Migration)

This matter concerned an appeal by Ms Thi Be Nguyen, the visa applicant, and Mr Tam Nguyen, the sponsor, against a decision regarding a Prospective Marriage (Temporary) (Class TO) visa (Subclass 300). The core dispute before the Tribunal was whether the parties genuinely intended to live together as spouses and were in a genuine relationship, both at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the parties continued to meet the requirements of clause 300.221 of the Migration Regulations 1994, which necessitates that the visa applicant intends to marry an Australian citizen, permanent resident, or eligible New Zealand citizen; that the parties have met and are known to each other personally; that they genuinely intend to marry during the visa period; and that they genuinely intend to live together as spouses. The Tribunal also considered the financial aspects of the relationship, the nature of the household, the social aspects, and the nature of the parties' commitment to each other.

The Tribunal found that the parties intended to marry on a specified date and that they had met and were known to each other personally, thus satisfying clauses 300.215 and 300.221. While acknowledging the limited evidence regarding joint financial commitments and shared household responsibilities, the Tribunal gave these considerations little weight due to the parties residing in separate countries. The Tribunal was satisfied, based on submitted statutory declarations, affidavits, photographs, and DNA evidence concerning their joint responsibility for a young daughter, that the parties represented themselves as being in a genuine and continuing relationship, undertook joint social activities, and drew companionship and emotional support from each other.

Consequently, the Tribunal concluded that the visa applicant met the specified criteria for a Subclass 300 visa. The Tribunal remitted the application for reconsideration by the Minister, with the direction that the visa applicant met the criteria outlined in cl.300.221 of Schedule 2 to the Regulations.