Allieu (Migration)

This matter concerned a review application before the Tribunal concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant had applied for a Prospective Marriage visa, but subsequently married the sponsor in their home country after the delegate's decision and before the review application was finally determined. The Tribunal was required to consider the implications of this marriage on the visa application.

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 as a Partner visa application if the applicant validly marries the sponsor after the initial refusal and before the review is finalised. The Tribunal also needed to determine if the marriage solemnised in the Republic of Guinea was recognised as valid for the purposes of the Migration Act 1958 (Cth), considering the provisions of Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that regulation 2.08E(2A) requires remission if the applicant marries the sponsor after the delegate's decision and before the review is determined, and notifies the Tribunal of the marriage. The Tribunal was satisfied, based on the provided marriage certificate, translation, and movement records, that the marriage in Guinea was validly solemnised and recognised under Australian law. 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 visa application to the Minister for reconsideration. The direction was that the application 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.