Abazu (Migration)

[2023] AATA 971

Abazu (Migration) [2023] AATA 971 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chukwudi Tochukwu Abazu

VISA APPLICANT:  Ms Amara Cecilia Ume-Ezeoke

REPRESENTATIVE:  Mrs Ashrita Zeeshan

CASE NUMBER:  2117320

HOME AFFAIRS REFERENCE(S):          BCC2021/30715

MEMBER:Justine Clarke

DATE:20 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits 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) 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 20 April 2023 at 10:21am

CATCHWORDS
MIGRATION – Prospective Marriage (Class TO) visa – Subclass 300 (Prospective Marriage) – validly married in home country after visa refused and before final determination of review – application taken also to be application for partner visas – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 12, 65
Migration Regulations 1994 (Cth), r 2.08E(2A), (2B)
Marriage Act 1961 (Cth), Part VA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 29 October 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 3 March 2021, the visa applicant applied for the visa as the prospective spouse of their sponsor, the review applicant.

3. On 23 November 2021, the review applicant applied to the Tribunal 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, reg 2.08E of the Migration Regulations 1994 (Cth) (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. 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 (Cth) (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, and whether the marriage is voidable under the local law.

7. In the present case, the review applicant informed the Tribunal that, on 27 January 2023, he and the visa applicant were married in Lagos, Nigeria. The Tribunal has been provided with evidence of the marriage in the form of a registered marriage certificate from the Federal Republic of Nigeria.

8. On the evidence before it, the Tribunal finds that the visa applicant applied for a Prospective Marriage (Temporary) (Class TO) visa, the Minister refused to grant the visa, and the sponsor of the visa applicant applied for review of that decision in accordance with the Act.

9. 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 visa applicant married the prospective spouse, 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 reg 2.08E(2A) are satisfied, and in accordance with reg 2.08E(2B) the application must be remitted to the Minister for reconsideration.

   DECISION

10. The Tribunal remits 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) visa; and

    ·a Partner (Provisional) (Class UF) visa

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

    Justine Clarke
    Member