Binny (Migration)

This matter concerned a review applicant's application to the Migration Review Tribunal for review of a decision to refuse a Prospective Marriage (Class TO) visa. The core dispute arose because the visa applicant married the sponsor after the initial visa refusal but before the Tribunal had finally determined the review application. The Tribunal was advised of this subsequent marriage and provided with evidence thereof.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied in these circumstances. Specifically, the Tribunal had to determine if the subsequent marriage, notified to the Tribunal before the final determination of the review, necessitated a specific procedural outcome under the Regulations. The Tribunal also considered the validity of the marriage for the purposes of the Migration Act 1958 (Cth), referencing Part VA of the Marriage Act 1961 (Cth) and its exceptions.

The Tribunal reasoned that where a Prospective Marriage visa application has been refused, and the applicant subsequently marries the sponsor before the review is finalised, regulation 2.08E(2A) mandates that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the marriage, solemnised in Victoria, Australia, was valid under Australian law, meeting the criteria for recognition under Part VA of the Marriage 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. The direction was that the application be taken to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.