Kanan (Migration)

This matter concerned a review application before the Tribunal regarding a refusal to grant a Prospective Marriage (Temporary) (Class TO) visa. The applicant had applied for the visa, the Minister refused to grant it, and the sponsor then applied for a review of that decision. Crucially, the applicant and sponsor married in Lebanon after the delegate's decision but before the review application was finally determined by the Tribunal.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the initial refusal and during the review process, the application should be treated as an application for a spouse visa rather than a prospective marriage visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the recognition of foreign marriages under the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal before the review is determined, the application must be remitted to the Minister. The Tribunal was satisfied that the marriage in Lebanon was valid under that country's civil law and was recognised for the purposes of the Migration Act, as it did not fall within any of the exceptions to recognition under Part VA of the Marriage Act. Consequently, the Tribunal found 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 be treated as also being an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.