Ergetu (Migration)

This matter concerned a review applicant seeking reconsideration of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant informed the Tribunal that they had validly married the sponsor in a third country after the initial delegate's decision but before the Tribunal's determination of the review application. The Tribunal was required to consider the implications of this subsequent marriage on the visa application.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 mandated the remittal of the visa application to the Minister for reconsideration as a partner visa, given that the applicant and sponsor had married after the delegate's refusal. The Tribunal also had to determine if the marriage, solemnised in Egypt, was recognised as valid for the purposes of the Migration Act 1958, by reference to Part VA of the Marriage Act 1961.

The Tribunal reasoned that where an applicant for a Prospective Marriage visa validly marries the sponsor after the delegate's decision and before the review is finalised, regulation 2.08E(2A) requires the Tribunal to remit the application to the Minister. This remittal is to be accompanied by 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, based on the provided marriage certificate, that the marriage in Egypt was valid under Australian law, as it complied with the requirements of Part VA of the Marriage Act. Consequently, the conditions for remittal under regulation 2.08E(2A) were met.

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