Phan (Migration)

[2022] AATA 4828

Phan (Migration) [2022] AATA 4828 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Chung Phan

VISA APPLICANT:  Mrs Nhu Mai Nguyen

REPRESENTATIVE:  Mr David Nguyen (MARN: 1278140)

CASE NUMBER:  2002119

HOME AFFAIRS REFERENCE(S):          BCC2018/5823867

MEMBER:Russell Matheson

DATE:5 December 2022

PLACE OF DECISION:  Sydney

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 05 December 2022 at 10:32am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – validly married in home country after notification of visa refusal decision and before review application finally determined – taken to be application for spouse visa – 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 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 26 December 2018 as the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 3 January 2020.

3. The review applicant applied to the Tribunal on 5 February 2020 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, reg 2.08E of the Migration Regulations 1994 (Cth) (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. When 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 (Cth) (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.

6. In the present case, the review applicant informed the Tribunal that he and the visa applicant were married in Ho Chi Minh City, Vietnam, on 18 August 2022. The Tribunal has been provided with evidence of the marriage in the form of a translated marriage certificate registered in Vietnam, on 18 August 2022.

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 reg 2.08E(2A) are satisfied, and in accordance with reg 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 that the visa application is remitted to the Minister.

   Russell Matheson
   Member