Vrbanic (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300, made by a person seeking to enter Australia to marry their Australian citizen partner, with a view to remaining permanently. The review applicant was the Australian citizen partner. The central dispute revolved around whether the visa applicant and the review applicant genuinely intended to live together as spouses, both at the time of the visa application and at the time of the Tribunal's decision, as required by clauses 300.216 and 300.221 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the visa applicant and the review applicant met the requirements of clauses 300.216 and 300.221 of Schedule 2 to the Migration Regulations 1994. These clauses necessitate a genuine intention to live together as spouses. The Tribunal was required to assess this intention by considering all documentary evidence, including correspondence, statements, photographs, financial records, personal correspondence, and social media records, in light of the definition of "spouse" in section 5F of the Migration Act 1958. This definition requires a married relationship, a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or not live separately and apart on a permanent basis.

The Tribunal applied the principles from *Jayasinghe v MIMA* [2006] FCA 1700, considering later events as evidence of prior facts to assess the genuineness of the relationship at the time of application. It found the documentary evidence submitted to be detailed and persuasive. The Tribunal was satisfied with the veracity of the fiancé relationship between the parties, concluding that the first named visa applicant met the criteria under cl.300.216 and cl.300.221.

Consequently, the Tribunal remitted the application for the Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister, with the direction that the first named visa applicant met the specified criteria for a Subclass 300 visa. The Tribunal also noted that the review applicant had advised that the second named visa applicant was no longer dependent on the first named visa applicant.