1503807 (Migration)

[2016] AATA 4139

1503807 (Migration) [2016] AATA 4139 (26 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr WENQIANG JIANG

VISA APPLICANTS:  Ms YANPING ZHOU
Mr DEJIN LAO

CASE NUMBER:  1503807

DIBP REFERENCE(S):  BCC2014/1894091

MEMBER:Dione Dimitriadis

DATE:26 July 2016

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) visa.

Statement made on 26 July 2016 at 12:23pm

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 4 August 2014 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 11 March 2015.

3. The review applicant applied to the Tribunal on 18 March 2015 for review of the delegate’s decisions.

4. The review applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments.

5. The Tribunal has been advised that the review applicant and primary visa applicant are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. In the present case, the review applicant informed the Tribunal at the hearing that he and the primary visa applicant were married in China on 4 January 2016. On 14 July 2016 the Tribunal received from the review applicant evidence of the marriage in the form of a Marriage Certificate together with a translation, and a Notarial Certificate. The Marriage Certificate indicates that the review applicant and the primary visa applicant registered their marriage on 4 January 2016 in Guangzhou City, China.

9. 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.

10. 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.

11. In relation to the secondary visa applicant, the Tribunal finds that as the review applicant and primary visa applicant have married, the secondary visa 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 visa applicant.

    DECISION

12. 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.

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

    Dione Dimitriadis
    Member