Le (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant, who was the sponsor, informed the Tribunal that she and the primary visa applicant had since married. The Tribunal was required to determine whether the circumstances of the marriage necessitated a different approach to the visa application.

The central legal issue was the application of Regulation 2.08E of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the marriage, which occurred after the delegate's decision but before the final determination of the review application, required the visa application to be remitted to the Minister. This involved assessing whether the marriage was valid for the purposes of the Migration Act 1958, by reference to Part VA of the Marriage Act 1961.

The Tribunal reasoned that where a visa applicant validly marries the sponsor after a refusal decision and notifies the Tribunal of this marriage before the review is finalised, Regulation 2.08E mandates that the application be remitted to the Minister. This allows the application to be treated as one for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the marriage in Vietnam was valid under Australian law, as evidenced by the provided marriage certificate, and that the requirements of Regulation 2.08E(2A) were met. Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, directing that they be treated as applications for the specified partner visas.