Migration Law

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 40 4, 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.

2MIGRATION LAW
(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.