Prospective Marriage Visa Applicant, Now Married, Assessed on Validity of Marriage

Why Was the Prospective Marriage Visa Refused?

On 1 February 2017, the Applicant applied for a Prospective Marriage (Temporary) visa and the delegate refused to grant the visa on 4 May 2018.

Upon review of the decision to the Tribunal on 6 July 2018, the tribunal was advised that the parties were now married.

 

The Tribunal’s Considerations in Assessing the Prospective Marriage Visa Refusal

 

Where an application has been made for review of a decision to refuse to grant a Prospective Marriage visa, the 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, requires the Tribunal to remit the application to the Minister for reconsideration.  This allows the now married applicant to be assess for a spouse visa rather than a prospective marriage visa.

 

Whether a marriage is recognized as valid

 

For the purpose of deciding whether a marriage is recognized as valid for the purposes of the Act, the Act provides that s 88D of the Marriage Act 1961 (Cth) applies.  Subject to certain exceptions not relevant to the present matter, foreign marriages recognized under local civil law in the country they were solemnized in will be recognized in Australia.

 

In the present matter, the Applicant was married in Lebanon, evidenced by a Marriage of Certificate issued by Ministry of the Interior and Municipalities, Tripoli, Lebanon on 24 September. 

 

The Tribunal was satisfied that 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 was recognized 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

 

The Tribunal’s Decision to Remit the Prospective Marriage Visa

 

The Tribunal remits the application for a Prospective Marriage (Temporary) visa for reconsideration, with the direction that the application be taken also to be an application for a Partner (Migrant) visa and a Partner (Provisional) visa.

 

Key Takeaways

 

Where:

·       An application has been made fore review of a decision to refuse grant of a Prospective marriage visa; and

·       The Applicant validly marries the sponsor after that decision; and

·       Notifies the Tribunal of the marriage before the review application has been finally determine; and

·       The Marriage is recognised as valid;

 

the Tribunal is required to remit the visa application to the Minister for reconsideration to be assessed for a spouse visa.

 

·       Foreign marriages solemnized in that foreign country will generally be recognized in Australia subject to exceptions:

o   Whether either party was already married

o   Whether the parties are within a prohibited relationship

o   Whether real consent was given by each party

o   Whether the marriage is voidable under the local law

 

GETTING ASSISTANCE

 

If you have had Prospective Marriage Visa (Subclass 300) refused by the Department, you have limited time to apply for merits review. You should consider contacting us immediately at 02-27007200 or email us to book in a time at info@ahclawyers.com.

 

We speak fluent English, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.

 

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