1503807 (Migration)

This matter concerned a review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The primary visa applicant had applied for this visa, the Minister refused to grant it, and the sponsor of the primary visa applicant applied for a review of that decision. The Tribunal was advised that the primary visa applicant and the sponsor had married after the initial refusal and before the review application was finally determined.

The central legal issue before the Tribunal was whether, in light of the marriage occurring after the visa refusal but before the review was finalised, the Tribunal was required to remit the application to the Minister for reconsideration as an application for a partner visa, and how this impacted the secondary visa applicant. The Tribunal also considered the validity of the foreign marriage for the purposes of the *Migration Act 1958* (Cth) and the *Marriage Act 1961* (Cth).

The Tribunal reasoned that Regulation 2.08E of the *Migration Regulations 1994* mandates that if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal of this marriage before the review is determined, the application must be remitted to the Minister. This remission is with a direction that the application be treated as also being for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal found that the marriage in China was valid under Australian law, as it was recognised under Chinese civil law and did not fall within the exceptions to recognition under Part VA of the *Marriage Act 1961*. Consequently, the requirements of Regulation 2.08E(2A) were met. However, the Tribunal determined that the secondary visa applicant could not meet the criteria for a Subclass 300 visa as a member of the family unit of a person holding a Subclass 300 visa, given the primary applicant was now married.

Accordingly, the Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister, with the direction that it be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal affirmed the decision not to grant the secondary visa applicant a Prospective Marriage (Temporary) (Class TO) visa.