Migration Law

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

1MIGRATION LAW
Answer 1:
Issues:
In this question, the court considered is an Administrative Appeal Tribunal. The case that
has been referred to here is the case of Moustafa (Migration) [2019] AATA 267 (15 January
2019). The issues that have been adjudicated here was whether the Prospective Marriage
(Temporary) (Class TO) Visa1 can be granted to the visa applicant according to section 65 of the
Migration Act 195823, hereinafter referred to as the act. The present case is a review case of the
decision of the lower court which had refused to grant the visa.
According to section 65 of the said act, the Minister of Immigration must be satisfied
with the conditions laid down like with the health and other criteria of the applicant as per the
Act or the Migration Regulations Act 994. In addition to this, the Minister must be sure that the
granting of such visa should not be barred by the provisions of section 40, 91WA, 91WB of the
Migration Act 1958 or any other provisions enumerated in this Act or any other laws recognized
by the Commonwealth. Moreover, the applicant must have paid the required visa application fee.
If these conditions are not satisfied, it may not grant visa to the applicant.
In this case, the Administrative Tribunal has cancelled the review petition with the
directions to apply for Partner (Migrant) (Class BC) visa4 and a Partner (Provisional) (Class UF)5
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 "Partner Visa (Apply Overseas)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore
5 "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
visa. Hence in this case, the successful party was the Administrative Appeals Tribunal6. It
functions to review the decisions on merits under the Commonwealth laws of the Government of
Australia.
Rules & Application:
The decision given by the Tribunal in the instant case is discussed in reference to the
Migration Act and the Migration Regulations. The applicant applied for visa on 1st February,
2017 as the Prospective spouse of the sponsor but it was rejected by the delegate on May 4th,
2018. In this instant case, the tribunal has to consider three criteria mainly; the first being
whether the marriage of the visa applicant is legally valid, the second factor is whether she is
married to the sponsor and the third one is whether the marriage was solemnized after the
application of prospective visa is made.
While deciding the case, the Tribunal looked upon the provisions of section 12 of this act
and Part VA7 of the Marriage Act. Whether a marriage is valid or not is given by section 128 of
the said act. According to this particular section, Part VA of the Marriage Act applies as if
section 88E of the Act is excluded.
The recognition of foreign marriages is given under Part VA of the Marriage Act. The
objective of this part is to provide result to chapter II of the Convention9 signed on 14th March,
1978 at the city of Hague. This part VA contains sections 88A to 88G.
Section 88E of the Act declares that whether a marriage is valid or not does not affect the
Part. Sub section 1 enumerates that a marriage which was solemnized in a country outside
6 "Administrative Appeals Tribunal | Administrative Appeals Tribunal", Aat.Gov.Au (Webpage, 2019)
<https://www.aat.gov.au/>.
7 The Marriage Act 1961, Part VA.
8 The Migration Act 1958, s. 12.
9 Convention on Celebration and Recognition of the Validity of Marriages, Chapter II.