Tran (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa (Subclass 300) made by the applicant, with a secondary application for her child. The sponsor was an Australian citizen. The dispute centred on whether the parties genuinely intended to marry and, crucially, whether they genuinely intended to live together as spouses.

The Tribunal was required to determine if the visa applicant intended to marry an eligible person, as per clause 300.211, and if the parties genuinely intended to live together as spouses, as required by clause 300.216. The definition of "spouse" under section 5F of the Migration Act 1958 (Cth) was central to this determination, requiring a married relationship, a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or not permanently apart.

The Tribunal found that the parties genuinely intended to marry, acknowledging their previous marriages and modest celebration plans. Regarding the intention to live together as spouses, the Tribunal considered the factors relevant to spousal relationships under regulation 1.115A(3), applying them to the prospective intention. The Tribunal noted the sponsor's history of gambling addiction and loneliness, but also his efforts to reduce gambling and the strong third-party support for the relationship.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the primary visa applicant met criteria 300.211, 300.212, 300.214, 300.215, 300.216, and 300.221, and the secondary visa applicants met criterion 300.311 of Schedule 2 to the Regulations.