Heng (Migration)

This matter concerned a review application before the Tribunal regarding decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant, who had applied for the visa, informed the Tribunal that they and the primary visa applicant had since married. The Tribunal was required to consider the implications of this subsequent marriage on the review process.

The central legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which dictates the procedure when a Prospective Marriage visa applicant marries their sponsor after a refusal decision but before the review is finalised. The Tribunal also had to determine if the marriage was valid for the purposes of the Migration Act 1958 (Cth), considering the provisions of Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that if a visa applicant validly marries the sponsor after a refusal and notifies the Tribunal before the review is determined, regulation 2.08E mandates that the application be remitted to the Minister. This remittal is with a direction that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal found that the marriage, solemnised in New Zealand and evidenced by a certificate, was recognised as valid under Australian law. Consequently, the requirements of regulation 2.08E(2A) were met.

Accordingly, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction 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 remittal.