HENG (Migration)

This matter concerned a review application before the Administrative Appeals Tribunal (Cth) regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor for the visa applicant, sought review of the delegate's refusal decision. The Tribunal was advised that the visa applicant and the sponsor had subsequently married in Cambodia.

The primary legal issue before the Tribunal was whether the subsequent marriage in Cambodia, which was recognised under Cambodian civil law, necessitated a different assessment of the visa application. Specifically, the Tribunal had to determine if the circumstances triggered the provisions of regulation 2.08E of the Migration Regulations 1994, which addresses situations where a visa applicant marries the sponsor after a refusal decision but before the review is finalised. The Tribunal also considered the validity of the foreign marriage for the purposes of the Migration Act 1958, referencing Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries the sponsor after a refusal decision and notifies the Tribunal before the review is determined, the application must be remitted to the Minister. The Tribunal found that the marriage in Cambodia was recognised under local civil law and, based on the evidence provided, was valid for the purposes of the Migration Act, as it did not fall within any of the exceptions outlined in Part VA of the Marriage Act. Consequently, the Tribunal was satisfied that the requirements of regulation 2.08E(2A) were met.

In accordance with regulation 2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application should also be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.