One of the requirements for the grant of a prospective marriage visa (subclass 300) is that the applicant still intends to marry the Australian/PR/NZ citizen at the time of decision. But if they marry before the visa is granted, is that visa automatically "converted" into a partner visa application?
Although there is no provision explicitly requiring a prospective marriage visa (PMV) applicant not to marry before the grant of a prospective marriage visa, that is implicit in cl 300.221 of Schedule 2 to the Migration Regulations 1994 (Cth), which reads as follows:
The applicant continues to satisfy the criteria in clause 300.211 ...
In turn, cl 300.211 reads as follows:
The applicant intends to marry a person who is:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen.
But what happens if an applicant marries before the PMV is granted?
Obviously, the applicant would be expected to advise the Department of that change of circumstance as soon as practicable, as per s 104 of the Migration Act 1958 (Cth).
If the non-citizen advises the Department of the marriage before the grant of the PMV, the Department will refuse to grant the visa by reason of the above provisions. Although PAM3 says that case officers will invite applicants to withdraw the application in those cases, practitioners might consider withdrawing the PMV application before they receive such an invitation.
Whether the non-citizen advises the Department of the marriage before or after the grant of the PMV, is the PMV (or the PMV application) "converted" into a partner visa application? What automatically happens by operation of law is very interesting, as discussed bellow.
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