Barwick (Migration)

The Administrative Appeals Tribunal considered an application for review of a delegate's decision to refuse Subclass 300 Prospective Marriage visas. The applicants sought review after the delegate was not satisfied that there was no impediment to the marriage under Australian law, specifically concerning the first applicant's marital status. The delegate had requested an apostilled Peruvian Single Status Certificate, which was not provided within the specified timeframe, leading to the refusal.

The primary legal issue before the Tribunal was whether the first applicant had an impediment to marriage under Australian law, as required by clause 300.221A of Schedule 2 to the Migration Regulations. A secondary issue concerned whether the other applicants met the criteria for inclusion as members of the family unit, which was contingent on the first applicant satisfying the primary criteria for the visa.

The Tribunal reasoned that a Peruvian Certificate of Absence of Record of Marriage, received after the delegate's decision, indicated that the first applicant had never been married according to Peruvian records. Accepting this evidence, the Tribunal was satisfied that there was no impediment to the proposed marriage under Australian law, thus satisfying clause 300.221A. As the first applicant's application was not yet fully determined and the Tribunal found in favour of the applicants on the basis of the submitted material, it determined that the matter should be remitted for reconsideration by the Minister to assess the remaining criteria for the Subclass 300 visa.