NGUYEN (Migration)

The Administrative Appeals Tribunal considered an application for a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The central dispute concerned whether the applicant and their partner genuinely intended to live together as spouses at the time of the visa application.

The Tribunal was required to determine if the parties met the criteria under clause 300.216 of Schedule 2 to the Regulations, which mandates a genuine intention to live together as spouses. This involved interpreting the definition of "spouse" under section 5F of the Migration Act 1958 (Cth), which requires a married relationship characterised by mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation or not living permanently apart. The Tribunal also considered whether the applicant continued to satisfy the relevant criteria at the time of the decision, as required by clause 300.221.

The Tribunal found that the parties had provided significant additional information demonstrating a financial relationship, shared household responsibilities, and the care of children in Vietnam. Evidence of socialising, acceptance by family members, and declarations from supporters further indicated the genuineness of their long-term relationship, which included the intention to raise step-children. Based on this evidence, the Tribunal was satisfied that the parties genuinely intended to live together as spouses at the time of the visa application, thus meeting clause 300.216. The Tribunal also found that the applicant continued to meet the relevant criteria at the time of the decision, satisfying clause 300.221.

Consequently, the Tribunal remitted the application for the Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 300.216, 300.221, and 300.321 of Schedule 2 to the Regulations.