Abdi (Migration)

This matter concerned a review application before the Tribunal regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor of the visa applicant, informed the Tribunal that the visa applicant and he had since validly married in Ethiopia.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which mandates the remission of a prospective marriage visa application to the Minister for reconsideration if the applicant and sponsor validly marry after the refusal decision and before the review is determined. This regulation requires the application to be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal also considered the validity of the foreign marriage under Australian law, specifically Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that as the parties had married in Ethiopia, a foreign marriage recognised under local civil law, and provided a marriage certificate as evidence, the marriage was recognised as valid for the purposes of the Act, subject to certain exceptions not applicable here. Given that the marriage occurred after the delegate's decision and before the final determination of the review, and the Tribunal was notified of this marriage, the requirements of regulation 2.08E(2A) were satisfied. Consequently, the Tribunal was obliged under regulation 2.08E(2B) to remit the application.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that it be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission.