Noor Ul (Migration)

[2017] AATA 2257

Noor Ul (Migration) [2017] AATA 2257 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Islam Noor Ul

VISA APPLICANT:  Mrs Qurrat Ui Ain          

CASE NUMBER:  1619313

DIBP REFERENCE(S):  BCC2014/3526264

MEMBER:Margie Bourke

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

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 13 November 2017 at 5:09pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Applicants validly married before review application finalised – Timing of registration

LEGISLATION

Marriage Act 1961, Part VA

Migration Act 1958, ss 12, 65

Migration Regulations 1994, r 2.08E

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 applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 December 2014 on the basis that the first named visa applicant was the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 17 October 2016.

3. The review applicant applied to the Tribunal on 16 November 2016 for review of the delegate’s decisions. The Tribunal has been advised that the review applicant and visa applicant are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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 applicant to be assessed for a spouse visa rather than a prospective marriage visa.

5. 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, whether the marriage is voidable under the local law, and whether the marriage is a same sex union.

6. In the present case, the review applicant informed the Tribunal that he and the visa applicant were married in Karachi, Pakistan, and the marriage was registered on 26 October 2016. The Tribunal has been provided with evidence of the marriage in the form of the registered marriage certificate, and the family registration certificate which records the birth of the review applicant’s and the visa applicant’s daughter on 26 July 2017.

7. The Tribunal has noted that the parties’ nikah is recorded as celebrated on the 14 October 2016, three days before the date of the Department’s decision record which is dated 17 October 2016. The Tribunal has considered that the nikah is one part of the marriage process, and has considered what is required for the completion of the solemnisation of the marriage. The Tribunal has considered that for the visa applicant to notify the Tribunal a valid marriage certificate or similar evidence that the marriage was recognised under the local civil law in the country where it was solemnised would be required. The Tribunal considers it reasonable to consider the date of registration of the marriage is an appropriate date to record the time of the marriage in these circumstances. The Tribunal is satisfied, based on the marriage registration certificate, that the marriage was registered on 26 October 2016. In these particular circumstances the Tribunal accepts that the visa applicant married her prospective spouse after the delegate had refused the application for the visa but before the Tribunal had determined the review application. The Tribunal is satisfied that the marriage is valid and therefore r.2.08E applies.

8. On the evidence before it, the Tribunal finds that the applicant applied for Prospective Marriage (Temporary) (Class TO) visa, the Minister refused to grant the visa, and the sponsor 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 decision was made and before the review application was finally determined, the visa applicant married the sponsor, the review applicant 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 the visa application is remitted to the Minister.

    Margie Bourke
    Member