1509017 (Migration)

[2016] AATA 3987

1509017 (Migration) [2016] AATA 3987 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Steven Edward Ericsson

VISA APPLICANT:  Ms Sotheary Sun

CASE NUMBER:  1509017

DIBP REFERENCE(S):  2014051331

MEMBER:Alan Duri

DATE:16 June 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 be taken also to be an application for:

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

·a Partner (Provisional) (Class UF) visa

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

Statement made on 16 June 2016 at 4:13pm

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 Ms Sun a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Sun, a Cambodia citizen, applied for the visa on 30 June 2014 as the prospective spouse of her sponsor Mr Ericsson, an Australian citizen.  The delegate refused to grant the visa on 26 May 2015.

3. Mr Ericsson applied to the tribunal on 6 July 2015 for review of the delegate’s decision.

4. The tribunal has been advised that the parties are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. Mr Ericsson informed the tribunal that he and Ms Sun were married in Cambodia on 30 September 2015. The tribunal has been provided with a Cambodian marriage certificate.

7. The tribunal finds that the marriage is valid for purposes of the Act.

8. The tribunal is satisfied that the requirements of r.2.08E(2A) are satisfied, and in accordance with r.2.08E(2B) the matter must be remitted to the Minister for reconsideration.

   DECISION

9. The tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration with the direction that the application 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.

   Alan Duri
   Member