Collari (Migration)

This matter concerned a review application made to the Tribunal by a sponsor regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The Tribunal was advised that the visa applicant and the sponsor had married after the delegate's decision but before the review application was finally determined.

The primary legal issue before the Tribunal was whether, in light of the subsequent marriage, 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 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 notification requirements had been met.

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 before the review is finalised, the application must be remitted to the Minister. The Tribunal found that the marriage, solemnised in Albania and evidenced by a marriage certificate, was recognised as valid under Australian law, as it did not fall within the exceptions outlined in the Marriage Act. Consequently, the Tribunal was satisfied that the requirements of regulation 2.08E(2A) were met.

Accordingly, the Tribunal remitted the visa application to the Minister for reconsideration, directing 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.