1408427 (Migration)

[2015] AATA 3422

1408427 (Migration) [2015] AATA 3422 (1 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Otto Silkjar

VISA APPLICANT:  Mrs Erlinda Nunez

CASE NUMBER:  1408427

DIBP REFERENCE(S):  OSF2013/041100

MEMBER:Don Smyth

DATE:1 October 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

· cl.300.221A of Schedule 2 to the Regulations.

Statement made on 01 October 2015 at 2:52pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The visa applicant applied for the visa on 3 May 2013. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.300.221A.

3. The delegate refused to grant the visa on 10 March 2014 on the basis that the visa applicant did not satisfy cl.300.221A of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was eligible to marry her sponsor (the review applicant).

4. For reasons set out below, the Tribunal has been able to decide the review in the review applicant's favour on the basis of the material before it. In these circumstances, it has not been necessary to proceed with a hearing in this matter: s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is any impediment to the marriage in Australian law.

7. Before proceeding to consider this issue, it is relevant to set out aspects of the background to this matter.

8. The visa applicant in this case is a citizen of the Philippines. She is sponsored in connection with the application by Mr Otto Silkjar (the review applicant), who is an Australian citizen as evidenced by his Australian passport. The review applicant was previously married. However, his wife passed away on 23 June 2009. The Department was provided with a copy of the relevant death certificate.

9. In her visa application, the visa applicant indicated that she had three children, the youngest of whom was born in 1987. She indicated that none of these children was migrating with her. Questions 63 and 64 of the visa application form contain questions relating to whether the visa applicant’s fiancé had ever been married to another person or in a de facto relationship with another person. In response to both questions, the visa applicant referred to Renato Salud and indicated that the relationship had ended in 2003.

10. The documentation submitted to the Department included a copy of a Marriage Contract relating to the visa applicant’s marriage to Renato L. Salud on 24 May 1989. Also submitted was documentation from the Regional Trial Court of the City of Malabon (Branch 73) recording that this marriage had been declared null and void.

11. The Department subsequently made inquiries of the Civil Registrar General in the Philippines. A search conducted by the National Statistics Office in Manila yielded two matches in the National Indices of Marriage. These are as follows:

    1.Date of Marriage: July 20, 1981

    
    

    Place-of Marriage: Tanauan, Leyte

    
    

    Name of Bride/Groom: ERLINDA NUNEZ/PROVO SEVERINO

    2.Date of Marriage: May 24, 1989

    
    

    Place of Marriage: Malabon City, Metro Manila (3rd District)

    
    

    Name of Bride/Groom: ERLINDA S. NUNEZ/RENATO L. SALUD

    
    

    Remarks/Annotation: With Declaration Of Absolute Nullity Of Marriage

12. Attached to the record from the National Statistics Office were copies of the Marriage Contracts for both marriages. Both Marriage Contracts recorded the visa applicant’s status as single at the time of the marriage.

13. By letter of 9 October 2013, the Department put to the visa applicant the information relating to the two marriages. It was put to her that she had not declared her first marriage on her application form and that she might fail to satisfy Public Interest Criterion 4020 (PIC 4020). The visa applicant responded in an e-mail dated 11 October 2013. Essentially she claimed that it had been her belief that the marriage was not valid. Further submissions and information have been provided to the Tribunal.

14. On 10 March 2014, the delegate made a decision to refuse to grant the visa. As noted above, the delegate found that the visa applicant failed to satisfy cl.300.221A on the basis that she was not eligible to marry the review applicant.

15. The delegate’s decision also referred to cl.300.223 and PIC 4020. The delegate noted that the visa applicant had not declared her first marriage and referred in particular to her response to question 63 of the application form. The delegate found that the visa applicant had provided “false and misleading information in a material particular”. The delegate was not satisfied that there were compelling or compassionate reasons for waiver of the PIC 4020 requirements. The decision went on to state: “As I am not satisfied that compassionate or compelling circumstances exist to warrant the waiver of the PIC 4020 in this instance, I am not satisfied that the applicant meets the requirements of Clause 300.221A of the Migration Regulations and consequently, the visa must be refused (and exclusion period applied).”

16. While the primary decision relates the requirements of PIC 4020 to cl.300.221A, PIC 4020 is not in fact relevant to cl.300.221A which requires that there is no impediment to the marriage in Australian law.

17. The delegate’s decision also referred to cl.300.223. In this regard, the Tribunal notes that Migration Legislation Amendment Regulation 2013 (No.3) (SLI 2013, No.146) (the amending regulation) amended cl.300.223 to include reference to PIC 4020. Schedule 5, item 5 of the amending regulation repealed the previous version of cl.300.223, which had not included reference to PIC 4020, and substituted a new cl.300.223 which included the requirement to satisfy PIC 4020.

18. The transitional provisions of the amending regulation (Schedule 10, item 1905) make it clear that the above amendment applies only in relation to visa applications made on or after 1 July 2013.

19. In the present case, the Tribunal is satisfied that the visa application was made on 3 May 2013. The visa application was made prior to 1 July 2013. In these circumstances, PIC 4020 is not applicable and the visa applicant cannot be said to have failed to meet the requirements of cl.300.223. No members of the visa applicant’s family unit are included in the application.

20. The Tribunal does not have sufficient information before it to make a finding on whether the visa applicant meets the other Schedule 4 criteria referred to in cl.300.223. However, it will proceed to consider whether the visa applicant meets cl.300.221A.

    Is there any impediment to the marriage?

21. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s.12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl.300.221B. In the present case, both the visa applicant and the review applicant are over 18 years of age.

22. The Tribunal notes that the delegate found that the visa applicant was not eligible to marry the sponsor.

23. The review applicant was previously married. However, the Department was provided with a death certificate relating to the review applicant’s late wife.

24. The records provided by authorities in the Philippines indicate that the visa applicant has been married twice previously. Independent information indicates that, although the law of the Philippines does not provide for divorce, a legal annulment may terminate a marriage (US Department of State 2015, Country Reports on Human Rights Practices for 2014: Philippines, accessed 1 October 2015).

25. In relation to the visa applicant’s marriage to Mr Renato Salud, the visa applicant produced to the Department evidence of a declaration of nullity. This is consistent with the information provided to the Department by the National Statistics Office. The Tribunal accepts that the marriage to Mr Salud has been declared null and void. It accepts that there is a legal annulment in relation to this marriage and that the marriage has ended.

26. With regard to the marriage to Mr Provo Severino, the Tribunal has been provided with a copy of a judgment from the Regional Trial Court of Malabon City (Branch 169) declaring the marriage void ab initio. Also submitted was a Certificate issued by the Office of the City Civil Registrar on 17 November 2014. This recorded registration of a Court Order relating to Nullity of Marriage. An annotated copy of the relevant Marriage Contract has been produced. This contains an annotation recording that, pursuant to the judgment of 23 September 2014, the marriage between the visa applicant and Provo Severino has been declared void ab initio. On the evidence before it, the Tribunal accepts that the marriage between the visa applicant and Mr Severino has been declared void ab initio in accordance with the law of the Philippines.

27. In all the circumstances, the Tribunal is satisfied that the visa applicant is free to marry the review applicant at the time of this decision. There is otherwise nothing in the evidence to suggest that there is any impediment to the marriage in Australian law. The Tribunal is satisfied that there is no impediment to the marriage in Australian law. Accordingly, cl.300.221A is satisfied.

28. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

29. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.221A of Schedule 2 to the Regulations.

    Don Smyth
    Senior Member