Vitebski (Migration)

This matter concerned an appeal by Mr Vitebski against a decision of the Migration Review Tribunal regarding a Prospective Marriage (Temporary) (Class TO) visa application made by Ms Alexeyeva. The central dispute was whether the parties genuinely intended to live together as spouses, both at the time of the visa application and at the time of the Tribunal's decision.

The legal issues before the Tribunal were whether Ms Alexeyeva and Mr Vitebski genuinely intended to live together as spouses, as required by clause 300.216 of Schedule 2 to the Migration Regulations 1994. The Tribunal was required to consider the definition of "spouse" under section 5F of the Migration Act 1958, which includes requirements for a married relationship, mutual commitment to a shared life, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also had regard to considerations for spousal relationships outlined in regulation 1.15A(3).

The Tribunal considered evidence including a signed notice of intended marriage scheduled for 4 March 2020, which it accepted as indicative of the parties' intention to marry, despite a misspelling of the review applicant's name. However, the Tribunal noted a lack of financial aspects indicative of a spousal relationship, such as joint ownership of assets, joint liabilities, or pooling of financial resources, although it accepted that some day-to-day household expenses were shared during a brief period of cohabitation. The Tribunal also noted that the review applicant had not departed Australia since 1994 and did not hold a current passport, and was unable to fly due to medication.

The Tribunal remitted the application for the Prospective Marriage (Temporary) (Class TO) visa to the Minister for reconsideration, with a direction that the visa applicant met the criteria under clause 300.216 of Schedule 2 to the Regulations.