Cuni (Migration)

This matter concerned 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, lodged the application for review with the Tribunal on 29 January 2021. The Tribunal was advised that the parties had since married.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which dictates the procedure when a visa applicant marries their sponsor after a decision to refuse a Prospective Marriage visa but before the review of that decision is finalised. The Tribunal was also required to consider whether the marriage was valid for the purposes of the Migration Act 1958 (Cth), particularly in light of section 12 of the Act and Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that where a visa applicant validly marries their sponsor after a refusal decision and notifies the Tribunal of this marriage before the review is determined, regulation 2.08E(2A) mandates that the Tribunal must remit the application to the Minister. This remittal is with a direction that the application be treated as also being for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the parties had married in Utah, USA, and provided evidence of this marriage. It found that the marriage was recognised as valid under Australian law.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that it be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remittal.