Hem (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant sought to demonstrate that there was no impediment to her proposed marriage under Australian law, specifically that she was legally divorced from her previous partner.

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence to satisfy clause 300.221A of Schedule 2 of the Migration Regulations, which requires that at the time of decision, there is no impediment to the proposed marriage under Australian law. This involved determining if the applicant was legally free to marry the sponsor, given her previous marriage and subsequent divorce from Loeng ORM.

The Tribunal reasoned that while an initial divorce certificate provided by a commune chief was deemed insufficient by the delegate, a subsequent submission of an original and translated Divorce Ruling from the Court of First Instance, dated 26 February 2018 and properly signed and sealed, established that the applicant had obtained a valid Cambodian divorce. The Tribunal was satisfied with the credentials of the signatories and concluded that the applicant was no longer a party to a marriage recognised as valid in Australia. Consequently, there was no longer an impediment to the proposed marriage under Australian law, and clause 300.221A was satisfied.

The Tribunal remitted the applications for reconsideration by the Minister, with the direction that the first named visa applicant met the criteria under cl 300.221 of Schedule 2 to the Regulations.