1502338 (Migration) - [2016] AATA 3583

1502338 (Migration) [2016] AATA 3583 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Sau Le
VISA APPLICANTS:  Mrs Thi Thien Trang Do
Mr Phuc Thien An Nguyen
CASE NUMBER:  1502338
DIBP REFERENCE(S):  OSF2014/026577
MEMBER:Lisa Lo Piccolo
DATE:18 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl. cl.300.211 of Schedule 2 to the Regulations;
·cl.300.214 of Schedule 2 to the Regulations;
·cl.300.215 of Schedule 2 to the Regulations;
·cl.300.216 of Schedule 2 to the Regulations; and,
·cl.300.221 of Schedule 2 to the Regulations.
Statement made on 18 March 2016 at 9:13am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).
The visa applicants applied for the visas on 25 April 2014. 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.300.211.
The delegate refused to grant the visas on 6 January 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant intend to live together in a genuine long term relationship. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.
The review applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the parties genuinely intend to live together as spouses.

Does the visa applicant intend to marry an eligible person?

Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has had regard to a certified copy of a Certificate of Australian Citizenship in the name of Sau Le. Accordingly, the Tribunal accepts that at the time of application the review applicant was an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1502338 (Migration)

Details

AGLC: 1502338 (Migration) [2016] AATA 3583
Case: [2016] AATA 3583
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the matter of 1502338 (Migration), the Australian Administrative Appeals Tribunal (AATA) considered an application for review of a decision 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 review applicant, Mr Sau Le, and the first named visa applicant, Mrs Thi Thien Trang Do, applied for the visas on 25 April 2014. The delegate refused the visas on 6 January 2015, finding that the first named visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that the parties intended to live together in a genuine long term relationship. The Tribunal considered whether the parties genuinely intended to live together as spouses, and whether they continued to meet the requirements of the visa at the time of decision.

The Tribunal found that the parties had met and were known to each other personally, that they intended to marry and that the marriage was intended to take place within the visa period. The Tribunal also found that the parties genuinely intended to live together as spouses. The Tribunal accepted the evidence that the parties had spent a considerable amount of time together, had discussed their future plans, and had made arrangements for their marriage in Australia. The Tribunal found that the parties had a genuine intention to live together as spouses, and that the requirements of cl.300.216 were met. The Tribunal further found that the parties continued to meet the requirements of the visa at the time of decision.

Accordingly, the Tribunal remitted the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa. The second named visa applicant's application, Mr Phuc Thien An Nguyen, was determined by reference to the outcome of the first named visa applicant's application on remittal to the Department for reconsideration.

Orders