Cooper (Migration)

The Administrative Appeals Tribunal (Cth) considered an application for review of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant had applied for the visa, the delegate refused it, and the applicant subsequently applied to the Tribunal for review. Crucially, the review applicant and the primary visa applicant married after the delegate's decision and before the Tribunal's determination.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied to the circumstances. This regulation dictates the Tribunal's course of action when a Prospective Marriage visa applicant validly marries their sponsor after a refusal decision but before the review is finalised. The Tribunal also had to determine if the marriage was valid for the purposes of the Migration Act 1958 (Cth), which involves considering Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that if the requirements of regulation 2.08E(2A) were met, it was mandated by regulation 2.08E(2B) to remit the visa application to the Minister for reconsideration. The Tribunal was satisfied that the marriage, solemnised in New South Wales and evidenced by a certificate from the NSW Registry of Births Deaths and Marriages, was valid under Australian law, with relevant exceptions under the Marriage Act not being applicable. The Tribunal noted that the primary visa applicant was in Australia at the time of the marriage. Consequently, the Tribunal found that the conditions for remission were satisfied.

The Tribunal remitted the visa application to the Minister for reconsideration. The remission was made with the direction that the application be treated as also an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission. The Tribunal also noted that health criteria, which were a reason for the original refusal, would be considered in the context of the Partner visa applications.