White (Migration)

[2019] AATA 56

White (Migration) [2019] AATA 56 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Patrick White

VISA APPLICANT:  Miss Sonia Herbert Massey

CASE NUMBER:  1713404

DIBP REFERENCE(S):  BCC2016/2302108

MEMBER:P. Maishman

DATE:23 January 2019

PLACE OF DECISION:  Perth

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 23 January 2019 at 11:11am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – grounds of jurisdictional error – married before review application determined – marriage certificate – assessment for spouse visa – decision under review remitted


LEGISLATION
Marriage Act 1961 (Cth), Part VA
Migration Act 1958 (Cth), ss 65, 349
Migration Regulations 1994 (Cth), rr 2.08E, 4.15, Schedule 2 cl 300.214

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 8 July 2016 as the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 8 June 2017.

3. The review applicant applied to the Tribunal on 23 June 2017 for review of the delegate’s decision.

4. On 3 October 2018 the Tribunal remitted the application with the direction that the via applicant met the requirements of cl.300.214.

5. On 10 January 2019 the applicant’s representative emailed the Tribunal advising that its decision made no mention of consideration of the applicant’s marriage, a certificate for which had been provided to the Tribunal prior to its decision on 20 August 2018. 

6. 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) 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.

7. The Tribunal erroneously remitted the application with the direction that the applicant satisfied cl.300.214. The Tribunal considers it did not comply with the requirements of s.349(2)(c)of the Migration Act and r.4.15(2) of the Migration Regulations.

8. On 18 January 2019 the Tribunal recalled the decision on the grounds of jurisdictional error.

9. The Tribunal has been advised that the parties are now married.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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) 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.

11. 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 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.

12. In the present case, the review applicant informed in a document received by the Tribunal on 20 August 2018 that he and the visa applicant were married in Delhi, India on 18 July 2018. The Tribunal has been provided with evidence of the marriage in the form of a Certificate of Marriage from the Office of the Marriage Registrar in New Delhi signed, stamped and dated 2 August 2018.

13. 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.

14. 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

15. 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.

    P. Maishman
    Member