Nguyen (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300, made by Ms Thi Phuong Loan Nguyen, who intended to marry an Australian citizen, Mr Duc Qui Nguyen. The dispute before the Tribunal was whether the parties genuinely intended to marry and to live together as spouses, as required for the visa. The Tribunal was tasked with making findings of fact on material matters in dispute, including an assessment of the parties' credibility and the nature of their commitment.

The legal issues before the Tribunal were whether the parties genuinely intended to marry and to live together as spouses, and whether their relationship met the criteria for a Subclass 300 visa. A key factual finding was that a civil ceremony held in Vietnam in November 2019, while attended by friends and family, was not a registered marriage and therefore did not constitute a valid marriage for the purposes of the Act. The Tribunal also considered the limited opportunities for the parties to demonstrate the financial, household, and social aspects of their relationship due to living in different countries and the impact of COVID-19 travel restrictions.

The Tribunal reasoned that while the parties had met on multiple occasions and had a civil ceremony, this ceremony did not meet the legal threshold for a valid marriage under the Act. The Tribunal acknowledged the difficulties faced by the applicant in providing evidence due to international travel restrictions and the sponsor's work commitments. Despite these challenges, the Tribunal found that the parties' commitment to their relationship was credible, and that they met specific criteria for the visa, namely clauses 300.115, 300.116, and 300.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the primary applicant met the specified criteria for a Subclass 300 visa. The Tribunal also directed that the secondary applicant's applications should be considered in light of the delegate's decision regarding the primary applicant's eligibility for the visa.