Sen (Migration)

[2024] AATA 1680

Sen (Migration) [2024] AATA 1680 (4 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chuen Sen

VISA APPLICANTS:  Ms Bunky Sun
Master Darapiseth Lim
Miss Leeanna Lim

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  2406061

HOME AFFAIRS REFERENCE(S):          BCC2018/1532900

MEMBER:Cheryl Cartwright

DATE:4 June 2024

PLACE OF DECISION:  Melbourne

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 300.215 of Schedule 2 to the Regulations

The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.215 of Schedule 2 to the Regulations

Statement made on 04 June 2024 at 1:42pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – marriage to take place within the visa period – Notice of Intention to Marry – signed letter from the marriage celebrant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 300.215

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

2. The visa applicants applied for the visas on 4 April 2018. 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 (Cth) (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. Relevantly to this matter the primary criteria include the requirement that the primary visa applicant provide evidence of the intended marriage.

3. The delegate refused to grant the visas on 12 March 2024 on the basis that the first named visa applicant did not satisfy cl 300.215 of Schedule 2 to the Regulations because the parties had not provided evidence that arrangements had been made for the marriage to take place within the visa period. On 25 March 2024 the Tribunal received a request for review of the delegate’s decision.

4. Upon reviewing further evidence that was received on 3 June 2024, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the visa applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled the hearing that had been scheduled for 7 June 2024.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant and the review applicant genuinely intend to marry as required by cl 300.215, which states that:

   The applicant establishes:
   (a) that the parties genuinely intend to marry; and
   (b) that the marriage is intended by the parties to take place within the visa period.

8. At the time of the delegate’s decision on 12 March 2024, the delegate found that the parties had not provided to the Department evidence of their genuine intention to marry. The delegate stated that such evidence was required to include:

   ·a signed and dated letter on letterhead from an authorised marriage celebrant who will conduct the ceremony

   ·the date, or a date range, and the venue of the planned marriage ceremony

   ·confirmation that a Notice of Intended Marriage form has been lodged with the marriage celebrant

9. In order to meet cl 300.215 the evidence must indicate that the parties intend to marry and the evidence should demonstrate that the marriage will take place within the visa period, that being a period of between nine and 15 months of the grant of a visa, and after the visa applicant’s entry to Australia.

10. On 3 June 2024 the Tribunal received from the parties’ representative:

    ·a submission dated 31 May 2024 by the representative

    ·a copy of a letter dated 4 April 2024 from a marriage celebrant, Sharon Osman, stating that the parties are scheduled to be married by her on 30 August 2024 and that a deposit fee of $100 had been submitted for Ms Osman’s services

    ·a copy of a ‘Notice of Intended Marriage’ form signed by the parties which had been lodged with the marriage celebrant

    Does the visa applicant intend to marry an eligible person?

11. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. At the time of application the visa applicant claimed to be the de facto partner of the sponsor who is an Australian citizen. A copy of the sponsor’s passport is on the Department’s file. Accordingly, the requirements of cl 300.211 are met.

    Do the parties genuinely intend to marry?

12. 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.

13. In his statement dated 31 May 2024 mentioned above, the parties’ representative states that the Department’s request for information was sent to the visa applicant’s son but there was a delay in providing the information.

14. The representative states that required documentation had been provided; however, the Notice of Intention to Marry and documentation by a marriage celebrant had been overlooked.

15. The Tribunal has before it evidence in regard to this matter which was not available to the delegate at the time of the decision dated 12 March 2024. On 3 June 2024 the Tribunal received an email from the representative containing the Notice of Intention to Marry, as well as a signed letter from the marriage celebrant, Sharon Osman, stating that the wedding is planned to be held on 30 August 2024. The Tribunal considers that this date can reasonably be considered to be within the visa period.

16. The Tribunal is satisfied that 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.

17. 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.

    Secondary applicants

18. In the circumstances where members of a family unit make a combined application, only one member of the family needs to satisfy the primary criteria. In the delegate’s decision dated 12 March 2024, the delegate stated that neither the primary nor the secondary applicants met the requirements of cl 300.215. The delegate found that the secondary applicants also did not meet the requirements of cl 300.215 as they had not made claims nor provided evidence that they intended to marry the sponsor.

19. Given the findings of the Tribunal in relation to the primary visa applicant, it is appropriate for the Tribunal to remit the applications of the secondary visa applicants to the Minister for reconsideration on the basis of the direction given for the primary visa applicant so the secondary visa applications can be assessed against remaining criteria.

    DECISION

20. 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 300.215 of Schedule 2 to the Regulations

    The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for a Subclass 300 (Prospective Marriage) visa

    ·cl 300.215 of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member