Le (Migration)

This matter concerned a review applicant seeking reconsideration of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The dispute arose because the visa applicant and the sponsor validly married in their home country after the initial refusal decision was made and before the review application was finally determined by the Tribunal. The Tribunal was tasked with determining the appropriate course of action given this subsequent marriage.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied to the circumstances. Specifically, the Tribunal had to determine if the marriage, occurring after the refusal and before the finalisation of the review, was validly recognised for the purposes of the Migration Act 1958 (Cth), and if so, whether the visa application should be remitted for reconsideration as an application for partner visas. The Tribunal also considered the provisions of Part VA of the Marriage Act 1961 (Cth) regarding the recognition of foreign marriages.

The Tribunal reasoned that where a marriage occurs after a Prospective Marriage visa refusal but before the review is finalised, regulation 2.08E mandates that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied, based on the evidence provided including a marriage certificate, that the visa applicant and sponsor had validly married in Vietnam and that this marriage was recognised under Australian law. Consequently, 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 be taken 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.