Uran (Migration)

[2021] AATA 4651

Uran (Migration) [2021] AATA 4651 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maria Salvatris Peni Uran

VISA APPLICANT:  Mr Olufemi Olayinka Akinwande

CASE NUMBER:  2014634

DIBP REFERENCE(S):  BCC2018/3040041

MEMBER:Andrew George

DATE:24 September 2021

PLACE OF DECISION:  Darwin

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

·cl.300.221A of Schedule 2 to the Regulations.

Statement made on 24 September 2021 at 12:50pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – impediment to marriage under Australian law – marital status – false or misleading information in a previous application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 300.221A

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 9 June 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 (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 question of whether an impediment to marriage arises in Australian law under cl.300.221A.

3. The delegate refused to grant the visa on 27 August 2020 on the basis that the visa applicant did not satisfy cl.300.221A of Schedule 2 to the Regulations because the delegate was not satisfied that there is no impediment to a marriage between the applicants in Australian law.

4. The delegate found that the visa applicant had provided the Department with evidence that he was already married in previous visa applications. The visa applicant had subsequently admitted that this was false and misleading information. The delegate raised the issue of a contravention of Public Interest Criteria 4020, in providing false or misleading information to the Department, but this did not form the substance of the decision under review.

5. The review applicant appeared before the Tribunal on 31 August 2021. She was granted until 28 September 2021 to submit further documents in support of her case. On 13 September 2021, the Tribunal received letters from:

   a.the Registrar of the Judiciary Department of the Ibadan South East Local Government, dated 2 September 2021, certifying that the visa applicant has never been married; and

   b.the Territorial Head of the Dalute Landlord and Landladies Association, dated 2 September 2021, stating that the visa applicant has never been married; and

   c.a Councillor of the Irepodun Local Council Development Area, dated 2 September 2021, stating that the visa applicant has never been married and is free to marry the review applicant.

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

   Is there any impediment to the marriage?

7. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law.

8. The balance of evidence before the Tribunal, particularly that submitted after the hearing, is that the visa applicant has never been married before. Accepting this evidence, the Tribunal is not satisfied that there is an impediment to a marriage between the applicants under Australian law.

9. As there is not an impediment to the proposed marriage under Australian law, cl.300.221A is satisfied.

10. 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.

11. The Tribunal notes that the natural corollary of its findings is that the visa applicant has previously made a false statement to the Department in other applications, namely that he falsely stated that he had been married. This is a matter for the Department to further consider in relation to Public Interest Criteria 4020.

    DECISION

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

    ·cl.300.221A of Schedule 2 to the Regulations.

    Andrew George
    Member