Or (Migration)

This matter concerned an appeal by Mr Or against a decision of the Tribunal to affirm the refusal of a Prospective Marriage (Temporary) (Class TO) visa (subclass 300) to Ms Hok. Ms Hok, a Cambodian national, applied for the visa to marry Mr Or, an eligible New Zealand citizen, with a view to remaining permanently in Australia. The core of the dispute revolved around whether the parties genuinely intended to live together as spouses at the time of the visa application, as required by clause 300.216 of the Migration Regulations.

The Tribunal was required to determine if the evidence presented satisfied the criterion that the visa applicant and the review applicant genuinely intended to live together as spouses. This involved considering the definition of "spouse" under section 5F of the Migration Act, which requires a married relationship characterised by mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. While the Tribunal acknowledged it was not assessing whether the parties were spouses at the time of application or decision, it considered their intentions in light of the legislative definition of a spouse.

The Tribunal considered a substantial volume of evidence submitted by both parties, including visa application forms, statutory declarations, correspondence, financial records, and personal statements. Despite the extensive documentation presented, which included evidence of an engagement ceremony and planned marriage, the Tribunal ultimately found that the visa applicant did not satisfy the criteria for the grant of the visa. The Tribunal concluded that the parties did not genuinely intend to live together as spouses.

Consequently, the Tribunal affirmed the decision not to grant Ms Hok a Prospective Marriage (Temporary) (Class TO) visa.