Youkhanna (Migration)

[2024] AATA 3897

Youkhanna (Migration) [2024] AATA 3897 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Shamiran Youkhanna

VISA APPLICANT:  Mr Nabel Nissan

REPRESENTATIVE:  Ms JOUMANA EL HALWE (MARN: 1388161)

CASE NUMBER:  2303193

HOME AFFAIRS REFERENCE(S):          BCC2019/3501302

MEMBER:Stephen Witts

DATE:4 September 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 visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.215 of Schedule 2 to the Regulations

Statement made on 04 September 2024 at 9:02am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – subclass 300 – the parties had a genuine intention to marry – applicant has provided a copy of a valid marriage certificate – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 300.215

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

2. The visa applicant applied for the visa on 12 July 2019. 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.

3. The delegate refused to grant the visa on 3 February 2023 on the basis that the visa applicant did not satisfy cl 300.215 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had a genuine intention to marry.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant has a genuine intention to marry.

   Do the parties genuinely intend to marry?

6. 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.

7. The Tribunal notes that the applicant has provided a copy of a valid marriage certificate dated 24 July 2024 for a marriage held in Lebanon with an Australian citizen.

8. Therefore, at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a).

9. 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.

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.

    DECISION

11. 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 300.215 of Schedule 2 to the Regulations

    Member
    Stephen Witts