1310882 (Migration)

[2015] AATA 3213

1310882 (Migration) [2015] AATA 3213 (21 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Robert Pare

VISA APPLICANTS:  Mrs Thi Trang Nguyen
Miss Thi Hue Tran Nguyen

CASE NUMBER:  1310882

DIBP REFERENCE(S):  OSF2012/031227

MEMBER:Michael Cooke

DATE:21 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration with the direction that the application made by the first named visa applicant be taken also to be an application for:

·a Partner (Migrant) (Class BC) visa; and

·a Partner (Provisional) (Class UF) visa

made on the day the visa application is remitted to the Minister.

The Tribunal affirms the decision not to grant the secondary visa applicant a Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 21 July 2015 at 2:51pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 18 October 2012 on the basis that the first named visa applicant (the primary visa applicant) was the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visas on 8 July 2013.

3. The review applicant applied to the Tribunal on 1 August 2013 for review of the delegate’s decisions. The Tribunal has been advised that the review applicant and primary visa applicant are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Where an application has been made for review of a decision to refuse to grant a Prospective Marriage visa, and the visa applicant validly marries the sponsor after that decision was made and notifies the Tribunal of the marriage before the review application has been finally determined, r.2.08E of the Migration Regulations 1994 (the Regulations) requires the Tribunal to remit the visa application to the Minister for reconsideration with the direction that the application be taken also to be an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. This allows the now married applicant to be assessed for a spouse visa rather than a prospective marriage visa.

5. For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Act, s. 12 of the Act provides that Part VA of the Marriage Act 1961 (the Marriage Act) applies as if s.88E of the Marriage Act were omitted. Subject to certain exceptions not relevant to the present matter, foreign marriages recognised under local civil law in the country where they are solemnized will be recognised in Australia under Part VA of the Marriage Act. The exceptions relate to whether either party was already married, whether the parties were of marriageable age at the time of the marriage, whether the parties are within a prohibited relationship, whether the consent of each party was real consent, whether the marriage is voidable under the local law, and whether the marriage is a same sex union.

6. In the present case, the review applicant informed the Tribunal that he and the primary visa applicant were married in Vietnam on 6 March 2014 and registered on 7 March 2014. The Tribunal has been provided with evidence of the marriage in the form of a copy of a Socialist Republic of Vietnam marriage certificate submitted by the sponsor’s representative (T1, f.91).

7. On the evidence before it, the Tribunal finds that the primary visa applicant applied for a Prospective Marriage (Temporary) (Class TO) visa; the Minister refused to grant the visa; and the sponsor of the primary visa applicant applied for review of that decision in accordance with the Act.

8. The Tribunal is also satisfied that in the period after the delegate’s decision was made and before the review application was finally determined: the primary visa applicant married the sponsor; the review applicant notified the Tribunal of the marriage; and the marriage is recognised as valid for the purposes of the Act. Therefore, the requirements of r.2.08E(2A) are met, and in accordance with r.2.08E(2B) the matter must be remitted to the Minister for reconsideration in relation to the primary visa applicant.

9. In relation to the secondary applicant, the Tribunal finds that as the review applicant and primary visa applicant have married, the secondary applicant cannot meet the criteria for a Subclass 300 visa as a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa, and the Tribunal must affirm the decision under review in relation to the secondary applicant.

   DECISION

10. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration with the direction that the application made by the first named visa applicant be taken also to be applications for:

    ·a Partner (Migrant) (Class BC) visa; and

    ·a Partner (Provisional) (Class UF) visa

    made on the day the visa application is remitted to the Minister.

11. The Tribunal affirms the decision not to grant the secondary visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Michael Cooke
    Member