Lazarevski (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by a visa applicant against a decision by the Minister for Immigration to refuse a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The dispute centred on whether the visa applicant was legally free to marry her sponsor at the time of the delegate's decision.

The primary legal issue before the Tribunal was whether an impediment to the marriage, specifically the visa applicant's existing legal marriage, prevented her from meeting the requirements of clause 300.221A of the Migration Act. This clause mandates that at the time of the decision, there must be no impediment to the marriage under Australian law. The Tribunal also had to determine if new evidence presented on review satisfied this criterion.

The Tribunal reasoned that while the delegate correctly identified an impediment to the marriage based on the visa applicant's existing legal status at the time of the delegate's decision, subsequent events had resolved this impediment. The visa applicant had provided evidence that a petition for a declaration of nullity of her marriage was pending, and later provided a certificate of finality declaring her marriage null and void. The Tribunal found this new evidence, which was not available to the delegate, satisfied the requirement under clause 300.221A that no impediment to the marriage existed. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration of the remaining criteria.