Le (Migration)

This matter concerned a review application before the Tribunal concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The review applicant had applied for these visas, the delegate refused them, and the sponsor subsequently applied for review of those decisions. The Tribunal was advised that the review applicant and the primary visa applicant had married after the delegate's decisions were made and before the review application was finally determined.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the refusal and prior to the determination of the review application, the application should be remitted to the Minister for reconsideration as an application for a spouse visa. 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 where a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal before the review is determined, the Tribunal must remit the application to the Minister. This remittal is with the direction that the application be treated as an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal found that the review applicant had notified the Tribunal of their marriage in Hai Phong City, Vietnam, and provided a marriage certificate that appeared valid. Applying section 12 of the Migration Act 1961, which directs that Part VA of the Marriage Act applies for the purpose of recognising foreign marriages, the Tribunal was satisfied that the marriage was recognised as valid for the purposes of the Act.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction 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 remittal.