Khawari (Migration)

This matter concerned an application for review by a visa applicant of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant had applied for the visa, the Minister refused to grant it, and the sponsor subsequently applied to the Tribunal for a review of that decision. The Tribunal was advised that the parties had since married.

The primary legal issue before the Tribunal was whether, in light of the parties' subsequent marriage, the application for a Prospective Marriage visa should be remitted for reconsideration as an application for a spouse visa. Specifically, the Tribunal had to determine if the conditions stipulated in regulation 2.08E of the Migration Regulations 1994 (Cth) were met. This regulation governs the process when a visa applicant marries their sponsor after a visa refusal but before the review application is finally determined.

The Tribunal reasoned that regulation 2.08E(2A) requires the Tribunal to remit a visa application to the Minister for reconsideration if the visa applicant validly marries the sponsor after the initial decision and notifies the Tribunal of the marriage before the review is finalised. The Tribunal considered section 12 of the Migration Act 1994 (Cth) and Part VA of the Marriage Act 1961 (Cth) regarding the recognition of foreign marriages. On the evidence presented, including a marriage certificate from Iran, the Tribunal was satisfied that the parties had validly married and that this marriage was recognised for the purposes of the Act. Consequently, the requirements of regulation 2.08E(2A) were satisfied.

In accordance with regulation 2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application 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.