The special arrangements due to the coronavirus pandemic continues with what is perhaps an unprecedented event with respect to substantive visas.

Subclass 300 – Prospective Marriage visa holders, who held this visa at any time between 6 October 2020 and 10 December 2020 and who were outside of Australia on 10 December 2020, will have their visa extended until 31 March 2022. Given the terminology in the amendments to the regulations, this can apply to:

• those who continue to hold this visa,

• had their visas granted between 6 October 2020 and 10 December 2020, and

• who have even had their visa expire during 6 October 2020 and 10 December 2020.

This addition to the regulations is extraordinary. On no occasion in recent memory has any substantive visa been “extended” by way of their visa cease date changing, reactivated in cases where it has expired, and potentially even having to replace another substantive visa.

Unlike bridging visas, you can only hold one substantive visa at any one time, with few exceptions. Furthermore, the amendments are retroactive in that despite the amendment dated 10 December 2020, it commenced on 6 October 2020, so there is a fair likelihood that some prospective marriage visas may have expired, but now must materialise. The explanatory memorandum states there were a “small number of visas which ceased on or after 6 October 2020.”

It would be interesting to know how the Department of Home Affairs will reconcile any of these discrepancies as they cannot “re-grant” the same visa. Section 69 of the Migration Act 1958 (Cth) ensures the finality of decisions except for jurisdictional errors, which are errors in the legality of the decision being made, something highly unlikely to be possible.

The lay concept of “applying for a visa extension” is simply not possible. Rather, this phraseology refers to applying for another visa of the same subclass as the one held. This requires meeting all legislative criteria again.

In this case of prospective marriage visas, it truly means a visa has been extended and without a visa application, nonetheless.