Migration Law

This document provides an analysis of two migration law cases. The first case involves a visa refusal and the conditions for granting a Prospective Marriage Visa. The second case discusses the time limits for applying for a remedy under the Migration Act. The decisions and rules applied in each case are explained in detail.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the Student:
Name of the University:
Author Note:

1MIGRATION LAW
Answer 1:
Issues:
In the case of Moustafa (Migration) [2019] AATA 267 (15 January 2019), the issue
involved before the Tribunal in the review application case was whether the Prospective
Marriage (Temporary) (Class TO) Visa1 is to be granted to the applicant under the provisions of
the section 65 of the Migration Act 195823, hereinafter referred to as ‘The Act’. The lower court
refused to grant the visa on the basis of the conditions given under the said section.
As per section 65, before granting visa, the Minister of Immigration must be satisfied
with the health criteria and other criteria of the applicant as prescribed by this Act or the
Regulations, and must ensure that the grant of the visa is not prevented by section 404, 91W5,
91WA6, 91WB7, 5018 or any other provision of this act or any other law of the Commonwealth
for the time being in force. Besides this required amount of visa application charge must also be
paid by the applicant. If the Minister is not satisfied with any of these conditions, the Minister
may refuse to grant the visa.
In the present case, the Administrative Tribunal cancels the visa review application with
the direction of making an application for the Partner (Migrant) (Class BC) visa9 and a Partner
1 Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/
prospective-marriage-300#howto>
2 The Migration Act 1958, s. 65.
3 "Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)
<https://www.legislation.gov.au/Details/C2017C00384>.
4 The Migration Act 1958, s.40.
5 The Migration Act 1958, s.91W.
6 The Migration Act 1958, s. 91WA.
7 The Migration Act 1958, s.91WB.
8 The Migration Act 1958, s.501.
9 "Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore.

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(Provisional) (Class UF) visa10. Hence, the party successful in this case was the Administrative
Appeals Tribunal11 whose main function is to review the administrative decisions independently
on merits under the Commonwealth laws of the Australian Government.
Rules & Application:
This decision in this case is to be explained in the light of the Migration Act and the
Migration Regulations 1994. The visa applicant applied for the visa on February 1st, 2017 as the
prospective spouse of the sponsor; however it was rejected by the delegate on 4th May, 2018.
In the present situation, the Tribunal has to satisfy with few conditions mainly while
deciding on this review. Firstly, whether the marriage of the visa applicant is valid, and secondly,
whether she is married to the sponsor and thirdly, whether the marriage was conducted after the
application of visa being made.
To decide upon the first criteria, the Tribunal had to consider the provisions laid down in
section 12 of the said act and Part VA12 of the Marriage Act. Section 1213 of the Migration Act
provides that in order to decide whether a marriage is to be considered as valid, Part VA of the
Marriage Act is applied as if section 88E of that Act were omitted.
Part VA of the Marriage Act provides for the provisions related to recognition of the
foreign marriages. The main purpose of this part of the Act is to give effect to Chapter II of the
Convention14 signed at The Hague on March 14, 1978. Sections 88A- 88G are included in this
part.
10 "Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore.
11 "Administrative Appeals Tribunal | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage, 2019)
<https://www.aat.gov.au/>.
12 The Marriage Act 1961, Part VA
13 The Migration Act 1958, s. 12.
14 Convention on Celebration and Recognition of the Validity of Marriages, Chapter II.

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Section 88E of Part VA of this Act15 provides that the validity of some marriages is not
affected by this Part. Subsection 1 of the this section provides that, subject to subsection 2, a
marriage solemnized in a foreign country that would be considered to be valid under the
common law of private international law. Subsection 2 gives that marriage of a person domiciled
in Australia, being a marriage solemnized in a foreign country will not be regarded as valid if at
the time of marriage, either of the party to the marriage was not of marriageable age within
meaning of Part II.
Section 88G of this Act16 provides that a document either the original or a certified copy
of the certificate of marriage issued by authority of the foreign country where it was solemnized
is a valid proof of marriage.
Applying the above mentioned provisions of law, the Tribunal was satisfied with the
validity of the marriage according to section 12 of the Migration Act as the visa applicant validly
marries the sponsor after the decision of visa refusal was made and also the Tribunal was
informed about the marriage. Moreover, a marriage certificate, issued by Ministry of Inferior and
Municipalities, Tripoli, Lebanon was produced before the tribunal as an evidence of the marriage
as per section 88G of the Part VA of the Marriage Act. Section 88E17 does not apply here.
Hence, according to r. 2.08E of the Migration Regulations18, the Tribunal must remit the
visa application to the Minister to reconsider it with the direction that the visa applicant must
apply for spouse visa instead of the prospective marriage visa.
15 The Marriage Act 1961, s. 88E.
16 The Marriage Act 1961, s. 88G.
17 The Marriage Act 1961, s. 88E.
18 The Migration Regulations 1994, r. 2.08E.

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Conclusion:
Thus the decision of the Tribunal for review of the decision of visa refusal was properly
justified according to the respective law provisions.
Answer 2:
Issues:
The issues involved in the case of Maharjan v Minister For Home Affairs & Anor [2019]
FCCA 433 was that whether the registrar will grant or dismiss the application to extend the 35
day period provided under section 477 of the Migration Act 195819 for applying for a remedy
under section 476 of the Act20. Section 477 provides for time limits on applications to the Federal
Circuit Court. It says that an application to such court for the grant of a remedy in the exercise of
the original jurisdiction of such court under section 476 in respect of migration decision must be
made to the court within 35 days from the date of migration decision. The Federal court may
extend such period by order by the use of its discretionary power if the applicant can satisfy the
court by making an application in writing why it is needed to extend such time limit for the
proper administration of justice and the court is convinced with such application. Such 35 day
time limit does not depend on the validity of the migration decision. Section 476 of the said act
provides for the jurisdiction of the court.
Rules & Application:
In this case, the order given by the registrar was dismissed and hence the applicant was
successful in the given case.
19 The Migration Act 1958, s. 477.
20 The Migration Act 1958, s. 476.

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While deciding the case, the judge decided in favor of the applicant by considering the
following facts. Firstly, the judge considered the reason why the Registrar dismissed the
application to extend the 35 day time limit of the visa, made by the applicant. The registrar did so
as the applicant failed to appear before him on the first court date. The registrar dismissed the
application in accordance to r.13.03C(1)(c) of the FCC Rules21 which provides that when a party
of a proceeding is not present from a hearing including a first court order, the court or Registrar
can adjourn the hearing to a specific date, dismiss it if the applicant is absent.
The judge tried to analyze the reasons of the applicant’s non appearance on the first date
in court. The applicant gave few explanations to show his incapacity to appear before the court
but he failed to satisfy the judge who found them inconsistent with the facts and circumstances of
the case. Moreover, the applicant made unnecessary delay in making application to dismiss the
decision of the registrar. The registrar dismissed the application on 26th of April, 2018 and he
filed the application on 9th January 2019. He did not provide reasonable explanations for this
delay.
In this case, the Judge had to consider the probable cause behind the decision of the
Tribunal against the applicant. The application before the Tribunal was for the review of the
decision of delegate not to grant the applicant a Student visa. The delegate did not grant the
Student visa to the applicant as the delegate found that the applicant did not met the criteria of
cl.500.312 of Schedule 2 to the Regulations22.
The judge discovered that the Tribunal failed to give appropriate decision because the
Tribunal did not address the nature of the relationship of the applicant with his wife. The
21 The Federal Circuit Court Rules, r.13.03C(1)(c).
22 The Migration Regulations 1994, Schedule 2, cl.500.312.

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applicant applied for student visa not for the continuation of study but to maintain conjugal
relationship with his wife who was also on student visa. The Tribunal did not look into whether
the applicant’s wife is a bona fide applicant for entry and stay as a student. Moreover, the
Tribunal did not analyze the education history of the applicant. All these account for
jurisdictional errors on the part of the Tribunal.
The decision made by Judge is concerned with two aspects mainly which are shifted and
weighed to reach the final result. The judge was not satisfied with the reasons given by the
applicant for causing delay in making application within time. Again, he found that the
application raised a case of serious jurisdictional error and that the applicant had prospects of
obtaining an order under section 477(2) of the Act23. While weighing these, he found that the
latter considerations outweigh the improper explanations given by the applicant.
Conclusion:
Hence, it can be said that the Judge made an appropriate decision in favor of the applicant.
23 The Migration Act 1958, s. 477(2).

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References:
"Administrative Appeals Tribunal | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage,
2019) <https://www.aat.gov.au/>
"Migration Act 1958", Legislation.Gov.Au (Webpage, 2019)
https://www.legislation.gov.au/Details/C2017C00384
"Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore>
Convention on Celebration and Recognition of the Validity of Marriages, Chapter II
Immi.Homeaffairs.Gov.Au (Webpage, 2019) https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/prospective-marriage-300#howto
The Federal Circuit Court Rules
The Marriage Act 1961
The Migration Act 1958
The Migration Regulations 1994
The Migration Regulations 1994, Schedule 2