Ma (Migration)

[2023] AATA 2647

Ma (Migration) [2023] AATA 2647 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Ry Na Ma

VISA APPLICANTS:  Miss Srey Mom Phon
Mr Lymeng Phon

CASE NUMBER:  1934863

HOME AFFAIRS REFERENCE(S):          BCC2018/1557681

MEMBER:M. Edgoose

DATE:5 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2023 at 11:48am

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– applicant failed to respond to the s 359A letter – primary applicant was granted a Subclass 820 Partner Visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,359
Migration Regulations 1994, r 1.12, Schedule 2, cl 300.321

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 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 6 April 2018. 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.

3. The delegate refused to grant the visas on 18 October 2019 on the basis that the visa applicants in this matter did not satisfy cl 300.321 of Schedule 2 to the Regulations because the delegate was not satisfied that they are members of the family unit according to reg 1.12 of the Regulations.

4. On 29 May 2023 at 2:04 pm the Tribunal sent a s 359A letter via email to the review applicant inviting her to comment on or respond to information that the Tribunal has before it by 13 June 2023. The letter was emailed to the email address that had been supplied to the Tribunal by the review applicant: [email protected]. The Tribunal instantly received an automated email at 2:04 pm that the delivery of the email had failed.

5. As a courtesy the Tribunal posted via registered post a copy of the s 359A letter on 30 May 2023 to the review applicant’s residential address that was on the Tribunal file. 

6. The review applicant was invited to comment on or respond to the following particulars of information the Tribunal had before it:

   ·     On 6 April 2018, Miss Srey Mom Phon, date of birth 11 January 1995 and Mr Lymeng Phon, date of birth 31 May 1996, applied as secondary applicants on a Prospective Marriage (Class TO300) visa. Miss Srey Mom Phon and Mr Lymeng Phon claimed to be a member of the family unit of the primary applicant Mr Saret Phon and you, Miss Ry Na Ma as the sponsor for the visa.

   · On 18 October 2019 the Department refused the application lodged by Miss Srey Mom Phon and Mr Lymeng Phon. The delegate was not satisfied that Miss Srey Mom Phon and Mr Lymeng Phon met clause 300.321 of Schedule 2 of the Regulations as the delegate was not satisfied the applicants are a member of the family unit according to regulation 1.12.

   ·     According to Departmental records the primary visa applicant in this matter, Mr Saret Phon, was granted a Subclass 300 visa on 3 December 2019 and arrived in Australia on 9 December 2019 according to his Movement Records.

   ·     According to the primary visa applicant’s Movement Records he was granted a Subclass 820 Partner Visa on 8 October 2020.

   This information is relevant to the review because given that the primary visa applicant is now the holder of a Subclass 820 Partner Visa the secondary applicants in this matter no longer meet the requirements of a Prospect Marriage (Temporary) (Class TI) Subclass 300 visa application as a secondary applicant must, at time of decision, satisfy clause 300.321, which states:

   The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa.

   If we rely on this information in making our decision, we may find that you are not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

7. The Tribunal notes that the review applicant did not respond to the s 359A letter by 13 June 2023. Given that the review applicant did not respond to the s 359A letter by 13 June 2023 the review applicant in this matter lost their entitlement to appear before the Tribunal to give evidence and present arguments. The Tribunal therefore has proceeded to make a decision based on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE 

   Clause 300.321

   The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa.

9. The Tribunal notes that the visa applicants in this matter are both secondary visa applicants.

10. The primary visa applicant in this matter is Mr Saret Phon and, according to his Movement Records and other Departmental records, he is now the holder of a Subclass 820 Partner visa.

11. Given this, the visa applicants in this matter do not and cannot meet the requirements of cl 300.321, as they are not members of the family unit of a person who is the holder of a Subclass 300 visa; the primary visa applicant in this matter is now the holder of a Subclass 820 visa.

12. Therefore, as stated above, the applicants in this matter do not and cannot meet the requirements of cl 300.321.

13. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    M. Edgoose
    Member