D'Jordan (Migration) - [2023] AATA 234

D'Jordan (Migration) [2023] AATA 234 (12 January 2023)
Corrigendum
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Todd Cameron D'Jordan
VISA APPLICANT:  Ms Thi Huong Phan
REPRESENTATIVE:  Mr Han Khew (MARN: 0101402)
CASE NUMBER:  2013079
HOME AFFAIRS REFERENCE(S):          BCC2019/4314009
MEMBER:Maxina Martellotta
DATE OF DECISION:  12 January 2023
DATE CORRIGENDUM
SIGNED:17 January 2023
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

The reference to the primary review applicant as a ‘New Zealand citizen’ is to be amended to an ‘Australian citizen’ in paragraph 29 of the decision record.
Maxina Martellotta
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Todd Cameron D'Jordan
VISA APPLICANT:  Ms Thi Huong Phan
REPRESENTATIVE:  Mr Han Khew (MARN: 0101402)
CASE NUMBER:  2013079
HOME AFFAIRS REFERENCE(S):          BCC2019/4314009
MEMBER:Maxina Martellotta
DATE:12 January 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa at the time of application (cl 300.21) and time of decision (cl 300.22):
·cl. 300.211; cl. 300.212A; cl. 300.214; cl 300.215 and cl 300.216 of Schedule 2 to the Regulations.

Statement made on 12 January 2023 at 9:50am
CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– the parties had a genuine intention to marry – parties genuinely intended to live together as spouses – parties continue to meet time of application requirements – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211, 300.212, 300.214, 300.215, 300.216
statement of decision and reasons
application for review

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 s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 August 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevant to this matter the primary criteria include that at the time of application (300.21) and at the time of decision (300.22) the applicant satisfy clauses 300.14 to 300.16.
The delegate refused to grant the visa on 7 August 2020 on the basis that the visa applicant did not satisfy cl 300.21 and cl 300.22 of Schedule 2 to the Regulations because at the time of application and time of decision the visa applicant did not establish that the parties genuinely intend to live together as spouses (300.216).
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D'Jordan (Migration)

Details

AGLC: D'Jordan (Migration) [2023] AATA 234
Case: [2023] AATA 234
Decision Date: 12 January 2023

CaseChat Overview and Summary

This matter concerned an appeal by D'Jordan against a decision regarding a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The appeal was heard by Maxina Martellotta. The core of the dispute revolved around whether the applicant continued to meet the criteria for the visa at the time of the decision, as required by clause 300.221 of the Migration Regulations.

The Tribunal was required to determine if the visa applicant met the criteria outlined in clauses 300.211, 300.214, 300.215, and 300.216 at the time of the visa application. These clauses stipulate that the applicant must intend to marry an eligible Australian citizen, permanent resident, or New Zealand citizen; that the parties must have met in person and be personally known to each other; that the parties must genuinely intend to marry during the visa period; and that they must genuinely intend to live together as spouses.

The Tribunal found that the requirements of clause 300.211 were met, as the visa applicant intended to marry an Australian citizen, and this was supported by documentation and oral evidence. Furthermore, the Tribunal was satisfied that the parties met the requirements of clause 300.214, having met in person since turning 18 and being personally known to each other. This conclusion was based on detailed evidence of their interactions, including initial introduction via family, multiple meetings in Vietnam and Malaysia, an engagement event, and a period spent together in Australia, corroborated by documentary evidence and third-party statements. The Tribunal indicated that it would proceed to consider the remaining criteria. The matter was remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration CONSIDERATION OF CLAIMS AND EVIDENCE Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application. Does the visa applicant intend to marry an eligible person? Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Documents provided in support of the visa application to the Department confirms that the review applicant is an Australian citizen born in August 1976. The requirements of cl 300.211 are met. The Tribunal is also satisfied that the visa applicant intends to marry the review applicant. In reaching this conclusion the Tribunal has considered the declaration made by the visa applicant in her visa application and the oral evidence presented at hearing.Have the applicants met in person and are they known to each other personally? Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The review applicant is 46 years of age. The visa applicant was born in June 1988 and is 34 years old. In oral evidence presented at hearing the review applicant and visa applicant confirmed, and the Tribunal finds that:a)They were introduced through the family priest in September 2018 and were initially introduced via a video chat.b)They physically met each other on 13 October 2018 at Ho Chi Minh and spent time in each other’s company whilst the review applicant was visiting Vietnam with his parents.c)After the review applicant returned to Australia, he and the visa applicant continued to communicate through social media platforms.d)The review applicant travelled to Kuala Lumpur with his family and met the visa applicant there. They travelled and spent time together between 30 December 2018 to 7 January 2019.e)The review applicant and visa applicant decided to become engaged. On 5 May 2019 they had an engagement event in Vietnam which was celebrated with friends and family.f)The visa applicant spent six weeks with the review applicant in Australia from December 2019 to January 2020. The oral evidence provided at hearing is supported by documents and statements provided by third parties which were provided to the Tribunal by the review applicant. The Tribunal is satisfied that the review applicant and visa applicant have met in person since each of them turned 18 and are known to each other personally. Therefore, at the time of application, the requirements of cl 300.214 were met.Do the parties genuinely intend to marry?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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