Dunstan (Migration)

This matter concerned a review application before the Tribunal concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant, who was the sponsor, informed the Tribunal that the primary visa applicant and he had validly married in Hong Kong after the delegate's refusal decisions were made and prior to the Tribunal's final determination of the review application. The Tribunal was provided with evidence of this marriage, including a marriage certificate and photographs.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied in these circumstances. Specifically, the Tribunal had to determine if the visa application should be remitted to the Minister for reconsideration as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, given that the parties had married after the initial refusal. The Tribunal also considered the validity of the foreign marriage for the purposes of the Migration Act 1958 (Cth), referencing section 12 of the Act and Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that regulation 2.08E(2A) mandates 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, the Tribunal must remit the application. The Tribunal found that the marriage in Hong Kong was recognised under local civil law and, subject to exceptions not relevant in this case, would be recognised in Australia under Part VA of the Marriage Act. Being satisfied that the primary visa applicant married the sponsor, that the Tribunal was notified, and that the marriage was valid for the purposes of the Act, the Tribunal concluded that the requirements of regulation 2.08E(2A) were met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application 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.