Le (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant, who was the sponsor, had applied for review after the delegate's decision. The visa applicant and the sponsor subsequently married after the delegate's decision but before the review application was finally determined. The Tribunal was required to consider the implications of this marriage on the visa application.

The primary legal issue before the Tribunal was whether the marriage, which occurred after the delegate's refusal and before the final determination of the review application, necessitated a different assessment of the visa application. Specifically, the Tribunal had to determine if the circumstances triggered the provisions of r.2.08E of the Migration Regulations 1994, which deals with the conversion of prospective marriage visa applications to partner visa applications upon marriage. The Tribunal also considered the validity of the marriage for the purposes of the Migration Act 1958, referencing Part VA of the Marriage Act 1961.

The Tribunal reasoned that r.2.08E(2A) requires the Tribunal to remit a prospective marriage visa application to the Minister for reconsideration if the applicant validly marries the sponsor after the delegate's decision and before the review is determined, and notifies the Tribunal of the marriage. The Tribunal found that the marriage, solemnised in Vietnam and evidenced by a marriage certificate, was recognised as valid under Australian law, as no exceptions under the Marriage Act applied. Consequently, the Tribunal was satisfied that the requirements of r.2.08E(2A) were met.

In accordance with r.2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application should also be taken to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (class UF) visa, effective from the date of remission.