Habib (Migration)

This matter concerned a review application made to the Tribunal by a sponsor regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The Tribunal was advised that the visa applicant and the sponsor had since married.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which dictates the procedure when a marriage occurs after a visa refusal but before the review is finalised. Specifically, the Tribunal had to determine if the subsequent marriage was valid for the purposes of the Act and if the notification requirements had been met.

The Tribunal reasoned that section 12 of the Migration Act 1961 (Cth), read with Part VA of the Marriage Act 1961 (Cth), 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 evidence of a marriage in Syria and the Tribunal was satisfied that the marriage was valid for the purposes of the Act, and that the Tribunal had been notified of this marriage before the review was determined, the requirements of reg 2.08E(2A) were met. Consequently, the Tribunal was obliged under reg 2.08E(2B) to remit the application.

The Tribunal remitted the visa application to the Minister for reconsideration, directing 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.