Nguyen (Migration)

[2020] AATA 2984

Nguyen (Migration) [2020] AATA 2984 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Quy Thong Nguyen

VISA APPLICANTS:  Ms Thi Hue Do
Mr Quang Tue Minh Nguyen
Mr Quang Truong Nguyen

CASE NUMBER:  1802333

DIBP REFERENCE(S):  BCC2017/1614604

MEMBER:Christine Kannis

DATE:15 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the visa application to the Minister for reconsideration, with the direction that the application be taken also to be an application for:

·a Partner (Migrant) (Class BC) visa; and

·a Partner (Provisional) (Class UF) visa

that is made on the day the visa application is remitted to the Minister.

Statement made on 15 July 2020 at 6:38am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – validly married in visa applicant’s home country – regulations require remittal for consideration as spouse rather than prospective marriage – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 12, 65

Migration Regulations 1994 (Cth), r 2.08E(2A), (2B)
Marriage Act 1961 (Cth), Part VA

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 Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 3 May 2017 on the basis that the first named visa applicant (the primary visa applicant) was the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visas on 22 January 2018.

3. The review applicant applied to the Tribunal on 30 January 2018 for review of the delegate’s decisions. The Tribunal has been advised that the review applicant and primary visa applicant are now married.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Where an application has been made for review of a decision to refuse to grant a Prospective Marriage visa, and the visa applicant validly marries the sponsor after that decision was made and notifies the Tribunal of the marriage before the review application has been finally determined, r.2.08E of the Migration Regulations 1994 (the Regulations) requires the Tribunal to remit the visa application to the Minister for reconsideration with the direction that the application be taken also to be an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. This allows the now married visa applicant to be assessed for a spouse visa rather than a prospective marriage visa.

6. For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Act, s.12 of the Act provides that Part VA of the Marriage Act 1961 (the Marriage Act) applies as if s.88E of the Marriage Act were omitted. Subject to certain exceptions not relevant to the present matter, foreign marriages recognised under local civil law in the country where they are solemnized will be recognised in Australia under Part VA of the Marriage Act. The exceptions relate to whether either party was already married, whether the parties were of marriageable age at the time of the marriage, whether the parties are within a prohibited relationship, whether the consent of each party was real consent, and whether the marriage is voidable under the local law.

7. In the present case, the review applicant informed the Tribunal that he and the primary visa applicant were married in Vietnam on 9 May 2018.  The Tribunal has been provided with evidence of the marriage in the form of a translated Marriage Certificate which appears to be valid.

8. On the evidence before it, the Tribunal finds that the visa applicants applied for Prospective Marriage (Temporary) (Class TO) visas, the Minister refused to grant the visas, and the review applicant applied for review of those decisions in accordance with the Act.

9. The Tribunal is also satisfied that in the period after the delegate’s decisions were made and before the review application was finally determined, the primary visa applicant married the sponsor, the sponsor notified the Tribunal of the marriage, and the marriage is recognised as valid for the purposes of the Act. Therefore, the requirements of r.2.08E(2A) are met and, in accordance with r.2.08E(2B), the application must be remitted to the Minister for reconsideration.

   DECISION

10. The Tribunal remits the visa application to the Minister for reconsideration, with the direction that the application be taken also to be an application for:

    ·a Partner (Migrant) (Class BC) visa; and

    ·a Partner (Provisional) (Class UF) visa

    that is made on the day that the visa application is remitted to the Minister.

    Christine Kannis
    Member