Garlepp (Migration)

[2018] AATA 5079

Garlepp (Migration) [2018] AATA 5079 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Brett Morris Garlepp

VISA APPLICANT:  Ms Precy Joy Jayme

CASE NUMBER:  1619701

DIBP REFERENCE(S):  BCC2015/1862567

MEMBER:Justine Clarke

DATE:12 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 November 2018 at 5:27pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – no impediment to the marriage in Australian law – previous marriage not annulled – court order to declare the marriage null and void – annulment case not completed – first marriage not registered till 2 years after marriage – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363A
Migration Regulations 1994, Schedule 2, cls 300.221A; Schedule 6D, rr 1.15, 2.26

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 Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms Precy Joy Jayme, is a 35 year old national of The Philippines. The review applicant, Mr Brett Morris Garlepp, is her sponsor, a 55 year old Australian citizen.

3. On 29 June 2015, the visa applicant applied for the visa. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.300.221A which requires that, at the time of decision, there is no impediment to the marriage in Australian law.

4. On 21 September 2016, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.221A of Schedule 2 to the Regulations because, as at the date of the primary decision, the applicant had not provided any evidence that she had annulled her marriage or that her husband was deceased.

5. On 22 November 2016, the review applicant applied to the Tribunal for review of the primary decision. The review applicant has been unrepresented.

6. On 11 October 2018, the Tribunal wrote to the review applicant, pursuant to s.359(2) of the Act, inviting him to provide further information to support his claims that he and his partner (the visa applicant) genuinely intend to marry and that there is no impediment to the marriage in Australian law, specifically any information about whether the visa applicant’s previous marriage has been annulled. The letter stated that, if the information was not provided in writing by 25 October 2018, or an extension not sought and granted by that date, the Tribunal may make a decision on the review without taking further steps to obtain the information. The review applicant was informed that, in such circumstances, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 23 October 2018, the review applicant requested an extension of time to provide the information. On 25 October 2018, the Tribunal wrote to the review applicant and granted an extension of time until 8 November 2018. This letter stated that, if the information was not received by this date, the Tribunal may make a decision on the review without taking any further action to obtain the information. The sentence stating that the review applicant would lose his right to a hearing was in bold type. 

8. The review applicant did not provide the requested information by 8 November 2018 and has not done so to date.   

9. 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. The Tribunal has decided to proceed to decision without taking further steps to obtain information such as inviting the review applicant to an interview. The Tribunal has taken this course because of the review applicant’s limited engagement in this review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether, at the time of this decision, the applicant meets cl.300.221A on the basis that there is no impediment to the marriage in Australian law.

    Is there any impediment to the marriage?

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

13. As was explained in the primary decision:

    Foreign marriages that are deemed as valid in the country in which it was solemnised are recognised under the Marriage Age and migration law.

    Under Australian law only one marriage (the first marriage) is capable of being recognised under Migration Law. Therefore, an applicant for a prospective spouse visa who has an existing valid marriage is unable to satisfy Regulation 300.221A above.

    Marriage under the Philippine Family Code can only be dissolved through annulment, where the party intending to re-marry must first obtain a court order to declare the marriage null and void, or death of one party. 

14. The Tribunal notes the certificate of marriage which is on the Department’s file which states that the visa applicant was married on 18 January 2005.

15. The primary decision states:

    Applicant was declared to be separated from her previous marriage and was requested by the Visa Processing Officer to provide evidence of her annulment on 23 March 2016.

    On 20 April 2016, the authorised agent advised the annulment case is in progress. The applicant was allowed a further 28 days to provide evidence of the completed annulment.

    On 19 July 2016, the agent advised that there had been considerable delays and that the applicant is hoping that her annulment would soon have a hearing.

16. The Tribunal notes the review applicant’s email to the Tribunal of 23 October 2018 which outlined the reasons for the delay in obtaining annulment of the visa applicant’s marriage. The Tribunal also notes the argument made by a lawyer assisting them that this may be a case of ‘no marriage’ because ‘Precy[’s] marriage was not registered till 2 years after the marriage date which he said is considered not a legal marriage in the Philippines’. The email also stated that the visa applicant was in The Philippines and that her lawyer was in court on 23 October 2018 to ‘push our case for an outcome’ and that they ‘hope[d to] have some good news this afternoon or tomorrow’. As noted earlier, the review applicant has not provided any update to the Tribunal.

17. The Tribunal considers that the evidence before it is that the visa applicant is party to another marriage that is recognised as valid in Australia.

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

19. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Justine Clarke
    Member