Khoder (Migration)

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

The primary legal issue before the Tribunal was whether, in circumstances where a prospective marriage visa applicant validly marries their sponsor after a refusal but before the review of that refusal is finalised, the application should be remitted for reconsideration as a spouse visa application. The Tribunal was required to consider the application of regulation 2.08E of the Migration Regulations 1994 (the Regulations) and the recognition of foreign marriages under the Marriage Act 1961 (the Marriage Act).

The Tribunal reasoned that regulation 2.08E(2A) of the Regulations mandates that if a visa applicant marries the sponsor after a refusal of a Prospective Marriage visa and notifies the Tribunal of this marriage before the review is determined, the application must 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 applied section 12 of the Migration Act 1958 and Part VA of the Marriage Act 1961 to recognise the validity of the marriage solemnised in Tripoli, Lebanon, as evidenced by a marriage certificate. The Tribunal was satisfied that the marriage was valid for the purposes of the Act.

Consequently, 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.