Nguyen (Migration)

This matter concerned an appeal before the Tribunal regarding a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The applicant sought to demonstrate a genuine intention to marry an eligible person, that the marriage was intended to take place within the visa period, and that the parties genuinely intended to live together as spouses. The Tribunal was required to assess whether the applicant continued to satisfy these criteria at the time of the decision.

The Tribunal considered whether the applicant intended to marry an eligible person, finding that the review applicant, an Australian permanent resident, met this requirement under clause 300.211. The Tribunal was also satisfied that clauses 300.212, 300.212A, 300.213, and 300.214 were met. Crucially, the Tribunal examined clause 300.215, which requires a genuine intention to marry and that the marriage is intended to take place within the visa period. Despite the absence of a formalised marriage and the parties living in different countries, the Tribunal found that the provision of a Notice of Intended Marriage and evidence of a cultural wedding ceremony satisfied this criterion. The Tribunal also addressed clause 300.216, concerning the genuine intention to live together as spouses, by referencing the definition of a spouse in section 5F of the Act, which includes a mutual commitment to a shared life as a married couple.

The Tribunal concluded that the evidence presented, including credible oral evidence, photographic evidence of a cultural wedding ceremony, and a Notice of Intended Marriage, sufficiently demonstrated the parties' genuine intention to marry and to live together as spouses. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 300.215, 300.216, and 300.221 of Schedule 2 to the Regulations.