Seang (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant sought review of a decision by the Tribunal concerning the genuineness of their relationship with the sponsor and their continuing intention to live together as spouses. The Tribunal was required to determine whether the parties genuinely intended to live together as spouses at the time of the visa application, and whether they continued to meet the relevant criteria at the time of the decision.

In reaching its decision, the Tribunal considered the definition of "spouse" under section 5F of the Migration Act 1958 (Cth), which requires a married relationship involving mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation or not living permanently apart. The Tribunal noted that while it was not to determine if the parties were spouses at the time of application or decision, an examination of their intentions regarding the legislative definition of spouse was relevant to assessing their aspirations. The Tribunal found that despite living in different countries, the applicant had sent money to the sponsor, they had been introduced by a family member, and had engaged in a prolonged visitation and engagement period in Cambodia. The Tribunal also took into account the family's approval, extensive telephone communication, and the birth of a child to the parties, with the sponsor intending to return to Cambodia.

Based on these findings, 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. Furthermore, the Tribunal found that the applicant continued to satisfy the relevant criteria, including clauses 300.211, 300.214, 300.215, and 300.216, at the time of the decision, satisfying clause 300.221. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria specified in clauses 300.216 and 300.221 of Schedule 2 to the Regulations.