Kanan (Migration) [2019] AATA 4664 (18 October 2019)

Last Updated: 13 November 2019

Kanan (Migration) [2019] AATA 4664 (18 October 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Fayzia Kanan

VISA APPLICANT: Mr Moustapha ABED EL KARIM

CASE NUMBER: 1837310

DIBP REFERENCE(S): BCC2017/4663280

MEMBER: Kira Raif

DATE: 18 October 2019

PLACE OF DECISION: Sydney

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 18 October 2019 at 9:55am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – validly married under home country’s civil law after delegate’s decision and before determination of review application – applicant to be assessed as spouse rather than prospective spouse – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 12, 65
Migration Regulations 1994 (Cth), r 2.08E
Marriage Act 1961 (Cth), Pt VA, s 88E

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 6 December 2017 as the prospective spouse of their sponsor, the review applicant. The delegate refused to grant the visa on 27 November 2018.
3. The review applicant applied to the Tribunal on 19 December 2018 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) 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 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.
6. In the present case, the review applicant informed the Tribunal that she and the visa applicant were married in Lebanon in September 2019. The Tribunal has been provided with evidence of the marriage in the form of a 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.


Kira Raif
Senior Member