Anderson (Migration)

[2024] AATA 2431

Anderson (Migration) [2024] AATA 2431 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Colin Harold Anderson

VISA APPLICANT:  Ms Thi Phuong Pham

CASE NUMBER:  2010783

HOME AFFAIRS REFERENCE(S):          BCC2019/1489561

MEMBER:Tegen Downes

DATE:30 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 30 May 2024 at 10:32am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – subclass 300 – review applicant did not respond to the invitation within the prescribed period – not satisfied the couple genuinely intended to marry during the visa period – no updated information has been submitted – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 300.215, 300.216

CASES
Hasran v MIAC [2010] FCAFC 40

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 Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under section 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 March 2019. 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 (Cth) (the Regulations).

3. The delegate refused to grant the visa on 28 April 2020 on the basis that the visa applicant did not satisfy:

   a.cl 300.215 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and the review applicant genuinely intended to marry within the visa period; and

   b.cl 300.216 of Schedule to the Regulations because the delegate was not satisfied that the couple genuinely intended to live together as spouses.

4. On 15 May 2024, the Tribunal issued an invitation to the review applicant pursuant to

   
   

   s 359(2) of the Act to provide: further information to support your claims that you and your partner genuinely intend to marry and live together as spouses; and information to show that you and your partner have met and are known to each other personally.

5. The invitation stated that the information should be provided by 29 May 2024 but that if the information could not be provided by this date, the review applicant may request an extension of time. The invitation also stated that in the event that no response was received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not respond to the invitation within the prescribed period and no extension has been requested. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3), the review applicant 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.

7. I have decided to proceed without taking further steps to obtain information from the review applicant. I consider that this is reasonable in circumstances where:

   a.On 30 June 2020, the Tribunal sent the review applicant (via his former representative) a letter which stated, among other things. ‘If you wish to provide material or written arguments for us to consider, you should do so as soon as possible’. No response was received.

   b.The Tribunal sent two emails to the review applicant (via his former representative) on 21 July 2020 and 14 May 2021, which were to the effect of requesting any marriage certificate if the parties had married. No responses were received.

   c.The review applicant has not engaged with the Tribunal since the application was filed, other than to notify the Tribunal of the removal of his representative and of a change in contact details in July 2022.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES AND LAW

9. This review application relates to a Prospective Marriage visa application, which is a temporary visa for people outside Australia who intend to marry, in Australia, the Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse. It allows the visa holder to travel to, enter and remain in Australia for a period of between 9 and 15 months, during which time the couple must marry.

10. The determinative issue in the present case is whether the requirements in cl 300.215 of Schedule 2 to the Regulations are met. This requires the Tribunal to be satisfied that the applicant and the sponsor hold a genuine intention to marry each other within the visa period.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

11. The visa applicant is a 62-year old woman from Vietnam. She applied for the visa on the basis that she was the prospective spouse of the review applicant, an 80 year-old Australian citizen.

12. According to the visa application, the couple claim to have met in April 2017 and become engaged in November 2017. The intended date of marriage was 12 January 2020.

    Do the parties genuinely intend to marry?

13. The Tribunal must be satisfied that at both the time of application, and at the time of decision, the parties have a genuine intention to marry.

14. I note that the department file contains, among other things:

    a.Notice of Intended Marriage signed by a Justice of the Peace on 12 April 2019. In the top corner, it refers to a marriage arranged on 12 January 2020 at the Court House at Tweed Heads.

    b.Notice of Intended Marriage signed by a Justice of the Peace on 12 April 2019. In the top corner, it refers to a marriage arranged on 22 May 2020 at the Court House at Tweed Heads.

    c.

    Receipt for payment of lodging a Notice of Intended Marriage dated

    
    

    22 January 2020. I note that there is no receipt for payment of the fees for solemnization of the marriage.

    d.Single Status Certificate issued under the Birth, Deaths and Marriages Registration Act 1995 (NSW) dated 12 March 2020 in respect of the review applicant.

    e.A statement from the visa applicant stating that they changed their wedding date from 12 January 2020 to 22 May 2020.

15. On the aforementioned evidence, I am not satisfied that, at the time of application, the couple genuinely intended to marry during the visa period. The Tribunal is unable to verify who made the annotations to the Notice of Intended Marriage with the intended marriage dates as they are not signed or registered. Further, there is no evidence that any fee was paid for the solemnization of the marriage ceremony. There is no other evidence before the Tribunal as to any arrangements made to celebrate the couple’s marriage.

16. No updated information has been submitted to the Tribunal as to the parties’ intention to marry. Accordingly, at the time of decision, the Tribunal is not satisfied that the parties have a genuine intention to marry during the visa period.

17. For these reasons, the requirements of cl 300.215 of Schedule 2 of the Regulations are not met and the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Tegen Downes
    Member