Dinh (Migration)

This matter concerned an application for review by a visa applicant of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant subsequently married the sponsor in Vietnam after the delegate's decision but before the Tribunal's determination of the review application, and notified the Tribunal of this marriage.

The Tribunal was required to determine whether the provisions of regulation 2.08E of the Migration Regulations 1994 were engaged, specifically whether the visa applicant's marriage, occurring after the delegate's refusal and before the final determination of the review application, was valid and should result in the application being remitted for reconsideration as a spouse visa application. The Tribunal also considered the recognition of foreign marriages under the Migration Act 1958 and the Marriage Act 1961.

The Tribunal reasoned that where a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal before the review is determined, regulation 2.08E mandates that the application be remitted to the Minister. This ensures the applicant is assessed for a spouse visa. The Tribunal found that the marriage in Vietnam was valid under Vietnamese civil law and recognised for the purposes of the Act, satisfying the requirements of regulation 2.08E(2A). Consequently, the Tribunal was obliged under regulation 2.08E(2B) to remit the application.

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 the remittal.