Lazarevski (Migration)

[2020] AATA 2693

Lazarevski (Migration) [2020] AATA 2693 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nick Lazarevski

VISA APPLICANT:  Ms Venice Quebec Delos Angeles

CASE NUMBER:  1615098

DIBP REFERENCE(S):  BCC2016/299267

MEMBER:Nicholas McGowan

DATE:15 May 2020

PLACE OF DECISION:  Melbourne

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:

·

cl.300.221A of Schedule 2 to the Regulations

Statement made on 15 May 2020 at 2:20pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – impediment to marriage – visa applicant legally married at time of delegate’s decision – petition for declaration of nullity pending – visa applicant notified delegate that the matter would take several months to conclude – certificate of finality provided to tribunal – impediment no longer exists – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338(2), 347, 368(3)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 300.221A

STATEMENT OF DECISION AND REASONS

1. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368. While this statement sets out the Tribunals’ decision - the reasons for it - and findings on material matters (including the evidentiary basis), to fully appreciate this decision a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and Tribunal (Administrative Appeals) case files

2. As required under the section 368(3)(b), this Tribunal will also provide to the Secretary a copy of the new documentary evidence on which material findings of facts were based.

   APPLICATION FOR REVIEW

3. 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).

4. The visa applicant applied for the visa on 20 January 2016. 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. 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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is there any impediment to the marriage?

6. The visa applicant applied for the temporary prospective marriage visa Subclass 300 on 20 January 2016.

7. On 21 July 2016 a delegate for the minister for immigration refused to grant visa on the basis the visa applicant was not free to marry the sponsor (review applicant) as the visa applicant is still legally married and therefore at the time of the delegate’s decision, under Australian law, unable to meet section 300.221A of the Migration Act.

8. 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.

9. Section 300.221A of the Migration Act serves to prevent the grant of the temporary partner visa in instances where there is/are an “…impediment to the marriage in Australian law”.

10. In this case the visa applicant’s own evidence to the delegate was that a petition for Declaration of Nullity of marriage against the visa applicant’s husband was pending before the Regional Trial Court of Cebu City, Branch 22 Civil Case No. 16-001199-CV.

11. On June 13 2016 the visa applicant further advised the delegate that it would take several months for the process of annulment to conclude.

12. A month later, the delegate for the immigration minister officially refused the visa applicant’s temporary visa application for the reasons discussed above.

13. On 19 September 2016 the visa applicant appealed the above refusal decision to this independent tribunal for a merits review. This is the matter under consideration in this review.

14. The visa applicant has now provide this tribunal with a copy of certificate of finality declaring the marriage between the visa applicant and her former husband “as NULL and VOID…”.

    FINDINGS

15. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act, and that the visa applicant has made a valid application for review under s.347 of the Act.

16. With respect to the matter identified above concerning section 300.221A of the Act, this tribunal has been satisfied by the evidence, not previously available to the delegate, that the impediment to the visa applicant’s marriage in Australia (which formed the basis of the original refusal decision) no longer exists.

17. It follows therefore, that this tribunal has been satisfied by the visa applicant’s documentary evidence that the requirement of the visa applicant under section 300.221A is met.

18. Given the findings of this tribunal, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

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