Cooper (Migration)

[2023] AATA 2974

Cooper (Migration) [2023] AATA 2974 (6 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Scott Jason Cooper

VISA APPLICANTS:  Ms Wanruedee Tisanthia
Master Pachara Tisanthia
Miss Phimchanok Desanthia

REPRESENTATIVE:  Mr Rhys Alexander Cochrane

CASE NUMBER:  2212391

HOME AFFAIRS REFERENCE(S):          BCC2021/1247553

MEMBER:Meena Sripathy

DATE:6 September 2023

PLACE OF DECISION:  Sydney

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 06 September 2023 at 10:38am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – parties married since the primary decision – valid marriage – taken to be an application for a permanent Partner visa – decision under review remitted          

LEGISLATION

Marriage Act 1961, s 88
Migration Act 1958, ss 12, 65
Migration Regulations 1994, r 2.08

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 Home Affairs to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 15 June 2021 on the basis that the first named visa applicant (the primary visa applicant) was the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visas on 10 August 2022.

3. The review applicant applied to the Tribunal on 24 August 2022 for review of the delegate’s decisions. The Tribunal has been advised that the review applicant and primary visa applicant are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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.

6. In the present case, the review applicant informed the Tribunal that he and the primary visa applicant were married in Killara, NSW Australia on 21 January 2023. The Tribunal has been provided with evidence of the marriage in the form of marriage certificate issued by the NSW Registry of Births Deaths and Marriages.  Evidence of the review applicant’s divorce and evidence to support the parties are of marriageable age is included in the Department file documents before the Tribunal. The Tribunal is satisfied, on the basis of department movement records, that the primary visa applicant was in Australia at the time of the marriage.  Therefore, on the evidence before it the Tribunal is satisfied the marriage is valid.

7. The Tribunal finds that the applicants applied for Prospective Marriage (Temporary) (Class TO) visas, the Minister refused to grant the visas, and the sponsor applied for review of those decisions in accordance with the Act.

8. The Tribunal is also satisfied that in the period after the delegate’s decisions were made and before the review application was finally determined, the primary visa applicant married the sponsor, 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 met and, in accordance with reg 2.08E(2B), the application must be remitted to the Minister for reconsideration.

9. The Tribunal observes the application for the Prospective Marriage (Temporary) (Class TO) was refused by the delegate for failure to complete health examinations as requested.  Before the Tribunal, the health examinations were undertaken, however information provided to the Tribunal indicates that, as at 6 September 2022, the applicant’s health assessment was deferred pending further information.  The Tribunal notes the issue of the health criteria will be considered again in the consideration of the Partner application and any further information as requested should be provided to the Department.

   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.

    Meena Sripathy
    Member