Curan (Migration)

This matter concerned a review application before the Tribunal regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant for review was the sponsor of the visa applicant, and the central issue was that the visa applicant and the sponsor had married after the initial refusal decision but before the Tribunal's review was finalised.

The Tribunal was required to determine whether the circumstances of the parties marrying after the delegate's decision and before the finalisation of the review satisfied the requirements of regulation 2.08E of the Migration Regulations 1994. Specifically, the Tribunal needed to consider if the marriage was validly recognised under Australian law for the purposes of the Migration Act 1958, given that it was a foreign marriage solemnised under local civil law.

The Tribunal reasoned that regulation 2.08E mandates the remission of a prospective marriage visa application to the Minister for reconsideration if the applicant and sponsor marry after the refusal decision and notify the Tribunal of this marriage before the review is determined. Such a marriage is to be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the Migration Act, which directs that Part VA of the Marriage Act 1961 applies for recognising foreign marriages, subject to certain exceptions not relevant in this instance. As the Tribunal was satisfied that the marriage had occurred, was notified, and was recognised as valid under the Marriage Act, the conditions for remission were met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction 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 remission.