Tran (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa (subclass 300) by a Vietnamese national, and her son. The sponsor was an Australian citizen. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the parties genuinely intended to marry and live together as spouses, and whether they met the relevant criteria under Schedule 2 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant and sponsor had a genuine intention to marry and live together as spouses, as required by the criteria for a subclass 300 visa. This involved assessing whether the parties met the requirements of clauses 300.211 (intention to marry an eligible person), 300.214 (met in person and known to each other), 300.215 (genuine intention to marry within the visa period), and 300.216 (genuine intention to live together as spouses) of Schedule 2 to the Regulations.

The Tribunal considered extensive documentary and oral evidence, including evidence of the parties' relationship history, financial support, travel, and statements from witnesses. It found that the parties had met and were known to each other personally, that the sponsor was an eligible person, and that there was a genuine intention to marry. The Tribunal also accepted that the parties had a mutual commitment to a shared life as spouses and that there was no impediment to their proposed marriage under Australian law.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the specified criteria for a subclass 300 visa, including clauses 300.211, 300.214, 300.215, 300.216, 300.221, and 300.221A. The second applicant was also found to meet the criteria under clause 300.312.