Phan (Migration)

[2017] AATA 2122

Phan (Migration) [2017] AATA 2122 (2 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Denny Phan

VISA APPLICANT:  Ms Xingyue Wang

CASE NUMBER:  1619140

DIBP REFERENCE(S):  OSF2015/048365

MEMBER:Margie Bourke

DATE:2 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 02 November 2017 at 1:40pm

CATCHWORD
Migration – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – Validly married before review application finalised

LEGISLATION
Marriage Act 1961, s 88E
Migration Act 1958, ss 5F, 12, 65,
Migration Regulations 1994, Schedule 2 r 2.08E

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 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).

2. The visa applicant applied for the visa on 30 October 2015 as the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 26 October 2016.

3. The review applicant applied to the Tribunal on 15 November 2016 for review of the delegate’s decision. The Tribunal has been advised that the parties 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 provided a copy of his marriage certificate together with a translated copy.  The translated copy records that the review applicant and the visa applicant were married in China and the marriage was registered on 13 February 2017.  The Tribunal has noted that the review applicant’s Australian passport number is recorded on the registered marriage certificate. The Tribunal has noted that the visa applicant’s national identity card number is recorded on the registered marriage certificate.  The review applicant informed the Tribunal through email correspondence from his representative dated 27 March 2017 that he and the visa applicant registered their marriage in China on 13 February 2017, and attached the copies of the marriage certificate and translated copy.

7. On the evidence before it, the Tribunal finds that the visa applicant applied for a Prospective Marriage (Temporary) (Class TO) visa, the Minister refused to grant the visa, and the sponsor of the visa applicant applied for review of that decision in accordance with the Act.

8. 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 prospective spouse, 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 satisfied, and in accordance with r.2.08E(2B) the application must be remitted to the Minister for reconsideration.

   DECISION

9. 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