Berhe (Migration)

This matter concerned a review application before the Administrative Appeals Tribunal (the Tribunal) concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant, who was the sponsor, had applied for review of the delegate's refusal decisions. Crucially, the primary visa applicant and the sponsor married after the delegate's decisions were made and before the Tribunal had finally determined the review application.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the refusal and before the review was finalised, the visa application should be remitted to the Minister for reconsideration as an application for a spouse visa, rather than continuing as a prospective marriage visa application. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 (the Regulations) and the validity of the marriage for the purposes of the Migration Act 1958 (the Act).

The Tribunal reasoned that regulation 2.08E(2A) 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 Tribunal must remit the application to the Minister. The Tribunal further noted that section 12 of the Act, read with Part VA of the Marriage Act 1961, provides for the recognition of foreign marriages in Australia, subject to certain exceptions not relevant in this instance. The Tribunal was satisfied that the marriage, solemnised in Khartoum and evidenced by a certificate, was valid for the purposes of the Act.

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, with the direction that it be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.