Bui (Migration)

The Administrative Appeals Tribunal (Cth) considered an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor of the visa applicant, had applied to the Tribunal for review of the delegate's decision. The central issue was that the visa applicant and the sponsor had married in Vietnam after the delegate's decision but before the Tribunal's determination of the review application.

The Tribunal was required to determine whether the subsequent marriage in Vietnam was valid and, if so, what the consequences were for the review application under the Migration Regulations 1994. Specifically, the Tribunal had to consider the application of regulation 2.08E of the Migration Regulations 1994, which addresses situations where a visa applicant validly marries their sponsor after a decision to refuse a Prospective Marriage visa has been made and before the review application is finally determined. The Tribunal also had to consider the recognition of foreign marriages under Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries their sponsor after the delegate's decision and before the review is determined, and this marriage is notified to the Tribunal, the application must be remitted to the Minister. The Tribunal found that the marriage in Vietnam, evidenced by a Vietnamese Marriage Certificate, was recognised under local civil law and therefore recognised in Australia under Part VA of the Marriage Act, as no exceptions applied. Consequently, the Tribunal was satisfied 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 should also be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day the application was remitted.