Lawi (Migration)

This matter concerned a review application before the Migration Review Tribunal concerning a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant had applied for review of the delegate's decision to refuse to grant the visa. 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 visa application should be remitted to the Minister for reconsideration as an application for a partner visa, rather than continuing as a prospective marriage visa application. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the validity of the marriage under Australian law, specifically 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 before the review is determined, and notifies the Tribunal of this marriage, the application must be remitted. The Tribunal was satisfied, based on the evidence of a marriage certificate and translation from Iraq, that the parties had validly married and that this marriage was recognised under Australian law, as no exceptions under Part VA of the Marriage Act applied. Consequently, the Tribunal found that the requirements of regulation 2.08E(2A) were met.

Accordingly, the Tribunal remitted the visa application to the Minister for reconsideration, directing that it 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.