Kazemi (Migration)

This matter concerned a review application made to the Administrative Appeals Tribunal (the Tribunal) by a sponsor regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa (subclass 300). The applicant for the visa had subsequently married the sponsor after the initial refusal decision but before the Tribunal had finally determined the review application.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the refusal and prior to the final determination of the review, the visa application should be remitted for reconsideration as an application for a different class of visa. Specifically, the Tribunal had to consider the application of regulation 2.08E of the Migration Regulations 1994 (the Regulations) and the validity of the marriage for the purposes of the Migration Act 1958 (the Act).

The Tribunal reasoned that regulation 2.08E(2A) mandates that where a visa applicant for a Prospective Marriage visa marries the sponsor after a decision to refuse the visa and before the review is determined, and notifies the Tribunal of this marriage, the Tribunal must remit the application to the Minister. This remittal is with a direction that the application be treated as also being an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the Act and Part VA of the Marriage Act 1961 to recognise the validity of the marriage solemnised in Iran, finding no exceptions applied. As the Tribunal was satisfied that the marriage had occurred, had been notified, and was valid under Australian law, the requirements of regulation 2.08E(2A) were met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that it be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.