Barwick (Migration)

[2021] AATA 5058

Barwick (Migration) [2021] AATA 5058 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Clive James Barwick

VISA APPLICANTS:  Ms Marina Jesus Galindo Arriola
Master Luis Enrique Palomino Galindo
Miss Shakira Kiara Palomino Galindo

CASE NUMBER:  2116349

HOME AFFAIRS REFERENCE(S):          BCC2019/6577998

MEMBER:Brendan Darcy

DATE:22 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 300 visa:

·cl 300.221A of Schedule 2 to the Regulations

Statement made on 22 December 2021 at 12:09pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – no impediment to the marriage – Peruvian Certificate of Absence of Record of Marriage provided upon review – members of the family unit – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 12, 65,360
Migration Regulations 1994, Schedule 2, cls 300.221, 300.311

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 applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 10 December 2019. The delegate refused to grant the visas on 2 November 2021.

2. The delegate made the decision on the basis that the applicants did not provide sufficient evidence that the first named applicant had not impediment to the marriage under Australian law to satisfy 300.221A for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration, and to do without a hearing.

   Background

4. On 30 June 2021, the Department wrote to the applicants stating that it had evidence the first named applicant had a spousal or cohabitational relationship prior to their own relationship and that the first named applicant may have been in a married relationship. The Department requested to provide the following document: an apostilled Peruvian Single Status Certificate.

5. The applicants were given 28 days to submit the required information. As the applicants did not provide evidence in a timely manner, the delegate proceeded to refuse the application for Subclass 300 visas based on the delegate not being satisfied that there was no impediment to the marriage under Australian law. Indeed, the delegate stated in relation of your current marital status, he or she was satisfied that the first named applicant is no longer in a de facto relationship with her last declared relationship, Mr Luis Enrique Palomino Mandujano.

6. The applicants validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 10 November 2021. On the same day, the Tribunal received a document from the Peruvian National Registry of Identification and Civil Status dated 3 November 2021. The Certificate of Absence of Record of Marriage indicates the first named applicant has never been married according to the records of the country to which the first named applicant is a citizen. 

7. On 19 November 2021, the applicants’ representative requested this matter be more urgently considered given the applicants’ visa applicant was refused on the basis of a missing document and the emotional impact on the family.

   Is there any impediment to the marriage?

8. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law.

9. The balance of evidence before the Tribunal is that the visa applicant has never been married before. Accepting this evidence, the Tribunal is not satisfied that there is an impediment to a marriage between the applicants under Australian law.

10. As there is not an impediment to the proposed marriage under Australian law, cl.300.221A is satisfied.

    The other applicants

11. The second and third named applicants were found by the delegate to not meet 300.311 because they were not to be members of the same family unit, and had not made a combined application with, a person who satisfies the primary criteria in clauses 300.211 to 300.212 and 300.214 to 300.216.

12. The first named applicant’s application for a Prospective Marriage (TO 300) visa is yet to be fully determined. Therefore, the Tribunal cannot assess whether the other applicants on the basis of the first named applicant satisfying other primary criteria for a Prospective Marriage (TO 300).

13. However, given the findings above regarding 300.221A, the Tribunal finds that it is appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa

14. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

15. The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 300 visa:

    ·cl 300.221A of Schedule 2 to the Regulations

    Brendan Darcy
    Member