Khen (Migration)

[2024] AATA 1061

Khen (Migration) [2024] AATA 1061 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Chanra Khen

VISA APPLICANT:  Mr Panha Oeur

REPRESENTATIVE:  Ms Nola Randall, OAM, Cambodian Australia Welfare Council

CASE NUMBER:  2003139

HOME AFFAIRS REFERENCE(S):          BCC2019/1569521

MEMBER:Michael Ison

DATE:24 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the requirements of cl 300.221A of Schedule 2 to the Regulations for the grant of a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa.

Statement made on 24 April 2024 at 6:08pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – impediment to marriage under Australian law – marital status – Kingdom of Cambodia Certificate of Celibacy – Single Status Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 300.221A

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 applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 March 2019.

3. The delegate refused to grant the visa on 31 December 2019.

4. The delegate made the decision on the basis that cl 300.221A was not met by the visa applicant.

5. Clause 300.221A of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) states:

   There is no impediment to the marriage in Australian law.

6. On 26 August 2019 the Department requested additional information from the applicants in relation to the visa application including “official documents confirming current single status for the applicant and sponsor.” The Department requested this information be provided within 28 days of the Department’s letter.

7. On 19 October 2019 the representative requested additional time to respond to the Department’s request, but no additional information was subsequently provided to the Department.

8. As noted above, the visa application was refused on 31 December 2019.

9. On 19 February 2020 the Tribunal received a copy of a Kingdom of Cambodia Certificate of Celibacy stating the visa applicant has not been previously married and is currently single. A certified translation of this certificate into English was also provided to the Tribunal.

10. The visa application lodged with the Department on 28 March 2019 states that the review applicant was married on 6 October 2008 and divorced on 6 October 2018.

11. On 19 February 2020 the Tribunal received a copy of a Single Status Certificate for the review applicant issued by the Registry of Births Deaths and Marriages in New South Wales on 28 November 2019 that states:

    I hereby certify that a search has been made in the Records of Marriage held by me from 01 January 2018 to 27 November 2019 inclusive for Chanra Khen who was born 01 April 1981 and no marriage registration occurring in New South Wales has been found.

12. In light of the new evidence received, the Tribunal is satisfied that the criterion in cl 300.221A of Schedule 2 to the Regulations is met and has concluded that the matter should be remitted for reconsideration.

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

    DECISION

14. The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the requirements of cl 300.221A of Schedule 2 to the Regulations for the grant of a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa.

    Michael Ison
    Senior Member