San (Migration)

[2020] AATA 1861

San (Migration) [2020] AATA 1861 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sokleang San

VISA APPLICANTS:  Mr Phon Meas
Mr Chhulean Chhiv
Mr Raksmey Chhiv
Mr Kevin Chhiv
Miss Khevy Chhiv

CASE NUMBER:  1800855

DIBP REFERENCE(S):  BCC2017/2733810

MEMBER:M. Edgoose

DATE:12 May 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.221 of Schedule 2 to the Regulations; and

As the applicant meets the legal requirements for cl.300.221 of Schedule 2 of the Regulations the Tribunal finds the second, third, fourth and fifth named visa applicants meet clause 300.321 of Schedule 2 to the Regulations for a Subclass 300 (Prospective Marriage) visa:

·cl.300.321 of Schedule 2 to the Regulations.

Statement made on 12 May 2020 at 8:30am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry within visa period – notice from civil marriage celebrant provided to tribunal – visa applicant continues to satisfy criteria – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 300.215, 300.221, 300.321

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 1 August 2017. 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 (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 visas on 13 November 2017 on the basis that the first named visa applicant did not satisfy cl.300.215 of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to marry?

5. 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 applicant submitted to the Tribunal on 11 May 2020 a notice from a Civil Marriage Celebrant dated 27 March 2020 of an intention to marry. “The marriage ceremony is currently planned to be solemnised by me (the marriage celebrant – Mr Trung Viet Doan) in Melbourne on 10 October 2020.” 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 continue to meet time of application requirements?

6. 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. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses. Accordingly, cl.300.221 is met.

7. 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

8. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.221 of Schedule 2 to the Regulations.

   As the applicant meets the legal requirements for cl.300.221 of Schedule 2 of the Regulations the Tribunal finds the second, third, fourth and fifth named visa applicants meet clause 300.321 of Schedule 2 to the Regulations for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.321 of Schedule 2 to the Regulations

   M. Edgoose
   Member