1600309 (Migration)

[2016] AATA 3950

1600309 (Migration) [2016] AATA 3950 (1 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Russell James Trevor Werfel

VISA APPLICANTS:  Ms Maria Cindy Quilla De Asis
Miss Cecile De Asis Sevilla

CASE NUMBER:  1600309

DIBP REFERENCE(S):  OSF2012/042073 OSF2016/043824

MEMBER:Kate Millar

DATE:1 June 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 01 June 2016 at 3:02pm

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 Ms De Asis and Miss Sevilla Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms De Asis and Miss Sevilla applied for the visas on 21 March 2012. 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 Ms De Asis, and Miss Sevilla need only meet the secondary criteria

3. The delegate refused to grant the visas on 10 November 2015 on the basis that the first named visa applicant did not satisfy cl.300.221A of Schedule 2 to the Regulations. This requires that there is no impediment to the marriage in Australian law. The impediment identified by the delegate was that Ms De Asis remained married to Mr Carlito Sevilla as recorded by the Philippine Statistics Authority.

4. The tribunal wrote to Mr Werfel under subsection 359(2) of the Act on 10 March 2016   inviting him to provide information to show Ms De Asis is no longer married to Mr Sevilla and information to show there is no other impediment to their marriage under Australian law. 

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 5 April 2016, the tribunal may make a decision on the review without taking further steps to obtain the information and that it would lose any entitlement it might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments.

6. Mr Werfel did not provide the requested information.  Instead, he provided an email from Ms De Asis stating she suffers hardship and another email stating that she had filed for an annulment of her marriage to Mr Sevilla in November 2015 but that this may be a long process.  He provided a receipt for payment to an attorney regarding an annulment. 

7. As this was not the information requested, the tribunal contacted Mr Werfel to advise he had not provided the information requested; namely that Ms De Asis was not longer married to Mr Sevilla and there was no other impediment to their under Australian law.

8. Mr Werfel responded on 24 April 2016 stating Ms De Asis is still married to Mr Sevilla but that a hearing was to be held on 9 May 2016, and that he was hoping his case would proceed after the annulment had been granted.   Mr Werfel has not provided any further information on the outcome of this hearing.

9. Mr Werfel has not provided the information requested of him within the prescribed period, or to the date of this decision, the tribunal deicide to proceed on the information before it pursuant to section 359C(1).  As Mr Werfel did not provide the information within the prescribed period, s.359C applies and pursuant to s.360(3) Mr Werfel is not entitled to appear before the tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The tribunal has decided to proceed to decision without taking further steps to obtain the information.

10. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is any impediment to the marriage of Ms De Asis and Mr Werfel under Australian law.

    Is there any impediment to the marriage?

12. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law.  Being married to another person is an impediment to marriage under the Marriage Act 1961.

13. As there is an impediment to the proposed marriage under Australian law, Ms De Asis does not meet cl.300.221A.

14. I appreciate Mr Werfel may have hoped this matter would not be addressed until Ms De Asis has obtained an annulment however there is no information before me to show that this matter is progressing or that there is a date by which there will be no impediment to the marriage.   This application was first lodged in March 2012, over four years ago, and an annulment could have been obtained in this time.

15. As Ms De Asis does meet the primary criteria for the grant of the visa, Miss Sevilla does not meet cl.300.321 of Schedule 2 of the Regulations.

16. As neither applicant meets the criteria for the grant of the visa, the decision under review is affirmed. 

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Kate Millar
    Member