Phan (Migration)

This matter concerned an appeal by the applicant, Phan, against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The core dispute revolved around whether the parties genuinely intended to marry and live together, a key criterion for the visa. The decision was made by Steven Griffiths, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant continued to satisfy the criteria for a Subclass 300 visa, specifically focusing on whether the parties genuinely intended to marry and live together. This required the Tribunal to assess whether the criteria, as they existed at the time of the visa application, were met. The relevant criteria included the applicant's intention to marry an eligible person, that the parties had met in person and were known to each other, and that they genuinely intended to marry and live together as spouses.

The Tribunal considered extensive evidence, including documentation from the Department of Home Affairs, additional information provided by the applicants, and oral testimony. It found that the sponsor was an Australian citizen and that the parties intended to marry within a month of the applicant entering Australia, satisfying the criterion under cl 300.211. The Tribunal also accepted evidence demonstrating that the parties had met in person and were known to each other, including multiple visits by the sponsor to Vietnam totalling approximately 112 days, and that they had been introduced by a mutual acquaintance. This satisfied the requirements of cl 300.214.

Given these findings, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the visa applicant met the criteria under clauses 300.211, 300.214, 300.215, 300.216, and 300.221 of Schedule 2 to the Regulations.