Al Khamisy (Migration)

This matter concerned a review application before the Tribunal regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor, informed the Tribunal that the visa applicant and he had validly married in Iran in June 2019, after the initial refusal decision but before the review was finally determined. Evidence of this marriage, including a marriage certificate, was provided to the Tribunal.

The primary legal issue before the Tribunal was whether the subsequent marriage of the parties necessitated a different assessment of the visa application. Specifically, the Tribunal had to consider the application of regulation 2.08E of the Migration Regulations 1994, which governs the situation where a visa applicant marries their sponsor after a decision to refuse a prospective marriage visa. The Tribunal also considered the validity of the foreign marriage under Australian law, referencing section 12 of the Migration Act 1994 and Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries their sponsor after a refusal decision and before the review is finalised, and this marriage is notified to the Tribunal, the application must be remitted to the Minister. The Tribunal found that the marriage in Iran was recognised under local civil law and, based on the evidence, met the criteria for recognition under Australian law, as none of the exceptions outlined in Part VA of the Marriage Act applied. Consequently, the Tribunal was satisfied that the requirements of regulation 2.08E(2A) were met.

In accordance with regulation 2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application should also be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.