Fais (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that the visa applicant had validly married the prospective spouse in India after the delegate's decision but before the Tribunal's determination. 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 (Cth) applied, which mandates that if a visa applicant marries the sponsor after a decision to refuse a prospective marriage visa and before the review is determined, the application must be treated as an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal also considered the validity of the foreign marriage for the purposes of the Migration Act 1958 (Cth), referencing Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that section 12 of the Migration Act, read with Part VA of the Marriage Act, provides for the recognition of foreign marriages solemnised under local civil law, subject to certain exceptions not relevant in this instance. As the review applicant had provided a Marriage Certificate as evidence of a marriage solemnised in India, and the Tribunal was satisfied that the marriage was valid under Indian law and met the criteria for recognition in Australia, the conditions for regulation 2.08E were met. Consequently, the Tribunal found that the application had to be remitted to the Minister for reconsideration.

The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the application be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, effective from the date of remittal.