Malky (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that the visa applicant had married the sponsor in Malaysia after the delegate's decision but before the review application was finally determined. The Tribunal was required to consider the implications of this subsequent marriage on the review process.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which mandates the remittal of a prospective marriage visa application if the parties marry after the initial refusal and before the review is finalised. This regulation requires the application to be treated as also being for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal also considered the validity of the foreign marriage under Australian law, referencing Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that as the parties had validly married in Malaysia and this marriage was recognised under Australian law, and as the Tribunal had been notified of the marriage prior to the final determination of the review, the conditions of regulation 2.08E(2A) were met. Consequently, the Tribunal was obliged under regulation 2.08E(2B) to remit the visa application to the Minister for reconsideration. The Tribunal directed that the application be taken to also be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remittal.