Tran (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa (subclass 300). The review applicant sought to have the decision set aside and remitted for reconsideration, arguing that the delegate erred in finding that the relationship between the applicant and her fiancé was not genuine and continuing.

The primary legal issue before the Tribunal was whether the evidence presented sufficiently demonstrated a genuine and continuing relationship between the review applicant and her fiancé, as required by the Migration Regulations 1994. This involved assessing various aspects of their relationship, including their history, communication, joint travel, plans for a shared household, and social interactions.

The Tribunal considered the evidence of the parties' long-standing acquaintance since 2007, their respective separations from previous spouses, and the development of their relationship from friends to a committed engagement. It noted their regular communication, including through Viber and phone, and instances of joint travel, both within Vietnam and the visa applicant's visit to Australia. The Tribunal also took into account their plans for marriage in Australia and the visa applicant's introduction to the review applicant's family. The Tribunal concluded that the delegate had not adequately considered all the evidence, particularly the extensive communication and the progression of their relationship, and therefore erred in their assessment.

Consequently, the Tribunal remitted the decision to the delegate for reconsideration, with directions to afford further weight to the evidence of the parties' communication and the development of their relationship.