The Prospective Marriage Visa (subclass 300), more commonly known as the Fiance Visa, is a temporary visa that enables visa applicants to travel to Australia to marry their Australian partner, who is either an Australian citizen, permanent resident or eligible New Zealand citizen.
This visa is suitable for applicants who are in a genuine and continuing relationship but do not have sufficient evidence to lodge a Partner visa application. The Prospective Marriage Visa has a lower evidentiary burden than a Partner visa, as the visa itself does not require the applicant and sponsor to have lived together or have any form of relationship registration at the time of application.
This blog outlines the factors that potential applicants must consider before applying for a Prospective Marriage Visa.
THE COUPLE MUST HAVE PHYSICALLY MET AND HAVE KNOWN EACH OTHER
Migration Regulation 300.214(1) requires the applicant and sponsor to have met in person after they turned 18 years of age. This ensures that applicants enter into a marriage with genuine consent and simultaneously protects young applicants who could become victims of forced marriage and/or trafficking.
The application may be denied if the visa applicant cannot provide proof of meeting reg 300.214(1).
In addition to reg 300.214(1), the couple must also be ‘known to each other personally’ (300.214(2)). This requirement is independent of the reg. 300.212A (the parties ‘have met’), as outlined in MIAC v Yucesan & Anor [2008] FCAFC 110.
There is no strict definition of 300.214(2); therefore, communication via letters, phone, fax, email or the internet is acceptable. To determine the extent to which the couple know each other, the Department may consider the following:
- evidence of contact that shows the development of the relationship;
- the frequency of their communication;
- whether the relationship is traditionally or culturally appropriate/acceptable within the couple’s circumstances;
- any other relevant evidence available/submitted to the Department.
THE COUPLE MUST HAVE A GENUINE INTENTION TO MARRY
At the time of the decision, reg. 300.215 outlines that the Department must be satisfied that the visa applicant and sponsor genuinely intend to marry within the 9 months of the grant of the visa. This may be evidenced by a letter from a marriage celebrant, a Notice of Intended Marriage (‘NOIM’), or other relevant corroborative evidence, such as evidence of wedding bookings, etc.
The Department does not require visa applicants to set a specific date for marriage, considering the varying nature of visa processing times. However, Migration Regulation 300.215(b) requires that the marriage must take place within the prescribed visa period.
To meet this requirement, visa applicants can indicate a date range in the celebrant’s letter/NOIM within the 9 months of the visa grant. Applicants can do this by calculating the stated average visa processing time at the time of application.
If the date does not fall within the appropriate periods described above, 300.215(b) cannot be satisfied.
COUPLES MUST GENUINELY INTEND TO LIVE TOGETHER AS SPOUSES
Regulation 300.216 requires the Minister assessing the application to be satisfied that the parties genuinely intend to live together as spouses.
This requires an objective assessment of the couple’s intention for their future. The current nature of the relationship is only one factor and is not determinative in meeting this requirement.
In determining this, Department may refer to Section 5F of the Migration Act, which defines a “married relationship” and Regulation 1.15A, which outlines the criteria in understanding the couples:
- financial aspects of the relationship
- nature of the household
- social aspects of the relationship; and
- nature of commitment to each other.
The Department will assess the above four aspects of the relationship (in futuro) – to determine the intentions of the couple.
Some other considerations to be mindful of when applying for an Australian Prospective Marriage Visa.
Does the marriage need to be in Australia?
There are no requirements that the marriage must take place in Australia. Applicants can marry outside Australia as long as it is a valid legal marriage.
What if the applicant and sponsor marry outside Australia before the visa is granted?
Before applying for Subclass 300
If the applicants intend to marry their prospective spouse outside Australia before their Subclass 300 grant, they are advised to apply for a Subclass 309/100 Partner visa instead.
After applying for Subclass 300
If the visa applicant marries their sponsor outside Australia, once Subclass 300 was applied for and before the Department decides on the application, the visa criteria cannot be satisfied.
However, under regulation 2.08E, once the couple has notified the Department of their marriage (under s104 of the Migration Act), and the marriage is valid for purposes of the visa (s5F of the Migration Act), the Department will then consider them to have applied for a Subclass 309/100 Partner visa.
In these cases, no additional first instalment is payable; the amount paid for the first instalment of the Subclass 300 visa is taken as payment of the first instalment for the Subclass 309/100 Partner visa.
Further Questions
Should you have any queries or concerns and/or would like to discuss with us how best to secure a Prospective Marriage Visa, Subclass 820 onshore Partner Visa, or Subclass 309 offshore Partner Visa, please feel free to schedule a consultation with us.
Our immigration lawyers and migration consultants are able to explain the complexities of the partner visa regime in Australia and assess your eligibility for a Subclass 300 Prospective Partner Visa.
Alternatively, you could utilize our free eligibility checker and peruse further information on prospective marriage visas on our website’s visa service page.
Author
Calvin Augustine is the founding solicitor of Augustine & Co. Immigration Lawyers. He graduated with Honors from the University of London law school, before being admitted to practice in Malaysia and Australia (admitted in SA, appears in all Victorian Courts and Tribunals, at trial and appellate levels).
