Tchekanabo (Migration)

[2019] AATA 3518

Tchekanabo (Migration) [2019] AATA 3518 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Margueritte Tchekanabo

VISA APPLICANT:  Mr David Baleke

CASE NUMBER:  1729317

DIBP REFERENCE(S):  BCC2016/1562812

MEMBER:Susan Trotter

DATE:2 July 2019

PLACE OF DECISION:  Brisbane

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 2 July 2019 at 3:00pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – validly married sponsor after Prospective Marriage visa refusal – notified Tribunal of marriage before review application determined – marriage certificate provided – application can be assessed for spouse visa – decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth), s 88E
Migration Act 1958 (Cth), ss 12, 65
Migration Regulations 1994 (Cth), 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 27 April 2016 as the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 19 October 2017.

3. The review applicant applied to the Tribunal on 23 November 2017 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) visa 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 solemnised 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 she and the visa applicant were married in Malawi on 19 June 2018. The Tribunal has been provided with evidence of the marriage in the form of a certified copy of the marriage certificate.

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 that the visa application is remitted to the Minister.

   Susan Trotter
   Member