Lleshaj (Migration)

This matter concerned a review applicant's application to the Administrative Appeals Tribunal (the Tribunal) for review of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The Tribunal was advised that the parties had since validly married and that the Tribunal had been notified of this marriage.

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 (the Regulations) and section 12 of the Migration Act 1958 (the Act), in conjunction with Part VA of the Marriage Act 1961 (the Marriage Act).

The Tribunal reasoned that regulation 2.08E(2A) mandates that where a visa applicant for a Prospective Marriage visa validly marries the sponsor after the delegate's refusal decision and before the review application is determined, and the Tribunal is notified of this marriage, the application must be remitted to the Minister. The Tribunal applied section 12 of the Act and Part VA of the Marriage Act to recognise the validity of the marriage solemnised in Albania, as evidenced by a marriage certificate, finding no exceptions to its recognition were applicable. Being satisfied that the requirements of regulation 2.08E(2A) were met, the Tribunal was obliged under regulation 2.08E(2B) to remit the application.

Accordingly, 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 remission.