Luong (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant and a review applicant who were married. The dispute arose from the refusal of a Prospective Marriage (Temporary) (Class TO) visa. The review applicant sought a review of this decision, and during the review process, the parties informed the Tribunal that they had since married.

The primary legal issue before the Tribunal was whether, in light of the parties' subsequent marriage, the application for a Prospective Marriage visa should be treated as an application for a Partner visa. Specifically, the Tribunal had to determine if the requirements of regulation 2.08E of the Migration Regulations 1994 were met, which govern the remission of applications when a marriage occurs after a visa refusal but before the review is finalised. 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 regulation 2.08E(2A) mandates that if a visa applicant validly marries the sponsor after a visa refusal and notifies the Tribunal before the review is determined, the Tribunal must remit the application to the Minister. This remission is to be accompanied by a direction that the application be treated as also being for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the parties had married in Vietnam and provided evidence of this marriage, which was recognised as valid under Australian law. Consequently, the Tribunal found that the conditions for remission were met.

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. The parties were advised to provide all relevant information regarding their genuine and continuing relationship to the Department to support their claims for these partner visas.