1511366 (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage visa. The review applicant, who was the sponsor, applied to the Tribunal after the delegate's decision. Crucially, the visa applicant and the sponsor subsequently married in Cambodia and notified the Tribunal of this marriage before the review application was finally determined.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the initial visa refusal and during the review process, the application should be remitted to the Minister for reconsideration as an application for a spouse visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the recognition of foreign marriages under Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates remission to the Minister if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal of the marriage before the review is finalised. The Tribunal was satisfied that the marriage in Cambodia was validly solemnised and recognised under Australian law, as no exceptions under Part VA of the Marriage Act applied. Consequently, the Tribunal found that the requirements of regulation 2.08E(2A) were met.

In accordance with regulation 2.08E(2B), the Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister. The direction was that the application should also be treated as applications for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission.