Sok (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Prospective Marriage (Class TO) (Subclass 300) visa. The primary applicant, Sokheng Liv, a Cambodian national, sought to marry the sponsor, Soktin Sok, an Australian citizen. The secondary applicants, Lyhuo Ngoem and Lyhor Ngoem, applied as dependent children of the primary applicant. The Department refused the visa application because it was not satisfied that there was no impediment to the marriage under Australian law, as the applicants had failed to provide evidence of their single status.

The legal issue before the court was whether there was any impediment under Australian law to the marriage between the primary applicant and the sponsor. The Department's delegate had refused the visa on the basis that the primary applicant had not satisfied criterion cl. 300.221A of Schedule 2 of the Regulations, which requires evidence that there is no impediment to the marriage. Consequently, the secondary applicants were also found not to satisfy their criteria.

The court noted that the Department had requested evidence of the parties' single status, but this evidence was not provided. However, the Tribunal received a translated "Clarification for Widow" document from Cambodia, dated 18 January 2019, which confirmed the primary applicant was a widow. The court found that this document, along with other evidence presented, indicated that there was no impediment to the marriage under Australian law. Therefore, the court remitted the matter to the Department for reconsideration.