McKenzie (Migration)

[2024] AATA 914

McKenzie (Migration) [2024] AATA 914 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ian Robert McKenzie

VISA APPLICANT:  Ms Verna Montecino

CASE NUMBER:  2200460

HOME AFFAIRS REFERENCE(S):          BCC2018/3669304

MEMBER:M. Edgoose

DATE:16 April 2024

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. 215 of Schedule 2 to the Regulations

·cl 300. 221 of Schedule 2 to the Regulations

Statement made on 16 April 2024 at 12:02pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – marriage intended to take place within visa period – date on notice of intended marriage passed before delegate’s decision – updated notice provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 300.215, 300.221

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 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 27 September 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 visa on 5 October 2021 on the basis that the visa applicant did not satisfy cl 300.215 and cl 300.221of Schedule 2 to the Regulations because the review applicant did not submit an up-to-date intention to marry form in time.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

   Does the visa applicant intend to marry an eligible person?

6. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal is satisfied that at the time the application was lodged the visa applicant intended to marry the sponsor.  Accordingly, the requirements of cl 300.211 are met.

   Have the applicants met in person and are they known to each other personally?

7. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The couple have met in person on numerous occasions. The Tribunal notes that the visa applicant has spent time living in Australia with the sponsor. Therefore, at the time of application, the requirements of cl 300.214 were met.

   Do the parties genuinely intend to marry?

8. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. The Tribunal notes that prior to the delegate’s decision being made the applicant and sponsor had lodged a Notice of Intended Marriage. At the time the marriage was to take place on 1 November 2019. However, the delegate in this matter did not make a decision until 5 October 2021. Therefore, at the time of the delegates decision, the submitted Notice of Intended Marriage was invalid.

9. On 12 January 2022 the couple lodged an Application for Review Form to have the delegate’s decision reviewed by the Administrative Appeals Tribunal. On 28 March 2024 the Tribunal wrote to the couple requesting an up-to-date Notice of Intended Marriage form. On 16 April 2024 the Tribunal received a signed up-to-date Notice of Intended Marriage form. A signed letter from Kathleen McCullagh, a registered marriage celebrant was also submitted and stated that the couple intend to marry between 15 May 2024 and 15 November 2025. Ms McCullagh further states that she will be the marriage celebrant for the marriage ceremony. Therefore, at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a). The proposed date for the marriage is within the visa period as required by cl 300.215(b). Therefore, the requirements of cl 300.215 are met.

   Do the parties genuinely intend to live together?

10. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship must be genuine and continuing; and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in reg 1.15A(3) for spousal relationships: reg 1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

11. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings. Based on the physical evidence submitted to the Tribunal from 12 January 2022 until 16 April 2023 the Tribunal is satisfied that the requirements of reg 1.15A(3) are met and that the couple genuinely intended to live together as spouses and therefore cl 300.216 is met  

    Do the parties continue to meet time of application requirements?

12. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl 300.211, 300.214, 300.215 and 300.216. Accordingly, cl 300.221 is met.

13. 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

14. 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 300.215 of Schedule 2 to the Regulations

    ·cl 300.221 of Schedule 2 to the Regulations

    M. Edgoose
    Member