Baradi (Migration)

This matter concerned an application for review by the sponsor of a visa applicant who had been refused a Prospective Marriage (Temporary) (Class TO) visa. The review applicant sought review of the delegate's decision to refuse the visa. The Tribunal was advised that the parties had since married.

The primary legal issue before the Tribunal was whether, in light of the parties' subsequent marriage, the visa application should be remitted to the Minister for reconsideration as an application for a partner visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and section 12 of the Migration Act 1958, in conjunction with Part VA of the Marriage Act 1961, to determine if the marriage was valid and if the conditions for remission were met.

The Tribunal reasoned that regulation 2.08E(2A) mandates remission to the Minister if a visa applicant validly marries the sponsor after a refusal decision and before the review is determined, provided the Tribunal is notified. The Tribunal found that the visa applicant had married the sponsor in Germany after the delegate's decision and before the review was finalised, and that evidence of this marriage, a German marriage certificate, had been provided. The Tribunal was satisfied that this foreign marriage was recognised as valid for the purposes of the Migration Act. Consequently, 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 remission was accompanied by a direction 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.