Ly (Migration)

This matter concerned a review applicant's application to the Migration Review Tribunal for review of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The core of the dispute revolved around the applicant's subsequent marriage to the sponsor after the delegate's refusal but before the Tribunal's final determination of the review application.

The Tribunal was required to determine whether the applicant's marriage, which occurred after the initial visa refusal and before the review was finalised, was valid for the purposes of the *Migration Act 1958* (Cth) and whether specific provisions of the *Migration Regulations 1994* (Cth) mandated a particular course of action. The central legal issue was the application of regulation 2.08E, which addresses the situation where a prospective marriage visa applicant marries their sponsor during the review process.

The Tribunal applied regulation 2.08E, which stipulates that if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal of the marriage before the review is determined, the application must be remitted to the Minister. This remittal is with the direction that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal considered section 12 of the *Migration Act* and Part VA of the *Marriage Act 1961* (Cth) in assessing the validity of the foreign marriage, finding that the marriage solemnised in Vietnam was recognised as valid.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that it be taken as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remittal.