Darwiche (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 review applicant, who was the sponsor, informed the Tribunal that the visa applicant and they had since married. The core of the dispute was whether this subsequent marriage necessitated a different assessment of the visa application.

The Tribunal was required to determine the legal effect of the parties marrying after the initial visa refusal and before the review application was finalised. Specifically, it needed to consider whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which dictates the procedure when a marriage occurs during the review period for a prospective marriage visa. The Tribunal also had to assess the validity of the marriage for the purposes of the Migration Act 1958 (Cth), considering the provisions of Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that if an applicant for a Prospective Marriage visa validly marries the sponsor after the delegate's decision and before the review is determined, regulation 2.08E mandates that the application be remitted to the Minister. This remittal is with a direction that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal found that the marriage, solemnised in Lebanon and evidenced by a certificate assessed as genuine by an Australian diplomatic official, was recognised as valid under Australian law. As the requirements of regulation 2.08E(2A) were met, the Tribunal was obliged to remit the application.

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