Hem (Migration)

[2023] AATA 3350

Hem (Migration) [2023] AATA 3350 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vin Hem

VISA APPLICANTS:  Ms Lida Sokh
Ms Sok Pisey Neoun
Ms Sodavatey Neoun

REPRESENTATIVE:  Mrs Patty Coe (MARN: 0744305)

CASE NUMBER:  2109803

HOME AFFAIRS REFERENCE(S):          BCC2019/3086903

MEMBER:Peter Emmerton

DATE:29 August 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.221 of Schedule 2 to the Regulations

Statement made on 24 August 2023 at 1:30pm

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– no longer an impediment to the proposed marriage under Australian law – valid Cambodian Divorce from their previous partner – visa applicant is not party to another marriage – original and a translated version of the Divorce Ruling received – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 300.221

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 18 June 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. Relevantly to this matter the primary criteria include cl.300.221.

3. The delegate refused to grant the visas on 12 July 2021 on the basis that the first named visa applicant did not satisfy cl 300.221A of Schedule 2 to the Regulations because they had not provided evidence of the visa applicant’s divorced status and thus could not undertake a valid legal marriage under Australian law.

4. The review applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issue in the present case is whether or not the first named applicant and the review applicant can legally marry. In order to meet this criteria both parties must be free to marry and the intended marriage must be able to be recognised under Australian law as valid.

   Is there any impediment to the marriage?

6. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s 12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl 300.221B.

7. The applicant has declared she was previously married to Loeng ORM from 7 March 2006 until the marriage ended in divorce on 13 March 2018.

8. The delegate, on 26 November 2019, requested the applicant provide evidence of divorce for both the applicant and sponsor, among other things, within 28 days. On 24 December 2019, an email was sent to the authorised email address granting a further 14 days to submit the outstanding evidence as was requested on 26 November 2019.

9. On 27 December 2019, evidence of the sponsor’s Divorce of Syhen SOEUN and Cassie Emma HEM was submitted. Also submitted was a certificate issued by the commune chief of Niroth regarding the applicant’s marital status stating she is divorced. No other evidence was submitted.

10. In accordance with Cambodian law, a Divorce Judgement can only be handed down by the Provincial or Municipal Court of the First Instance. The delegate asserted in the absence of this evidence a supporting certificate issued by the chief of commune is insufficient to demonstrate there is no impediment to the intended marriage under Australian law. The delegate could not be satisfied the applicant was legally divorced from Loeng ORM. Therefore, they were unable to be satisfied she was free to marry the sponsor. Subsequently, they were unable to be satisfied the applicant meets clause 300.221A of Schedule 2 of the Migration Regulations.

11. On 22 July 2023 the Tribunal received a letter which included the original and a translated version of the Divorce Ruling. The document was dated 26 February 2018 and was signed and sealed by the Vice President of the Court of First Instance and witnessed by the Clerk of the Court. The Tribunal has checked and is satisfied regarding the Judges credentials.

12. As it is clear to the Tribunal the visa applicant is not party to another marriage that is recognised as valid in Australia following their valid Cambodian Divorce from their previous partner there is no longer an impediment to the proposed marriage under Australian law.

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

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

15. The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl 300.221 of Schedule 2 to the Regulations

    Peter Emmerton
    Member