Masri (Migration)

This matter concerned a review applicant seeking reconsideration of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant had previously provided evidence of a divorce from a prior marriage. Crucially, the visa applicant and the sponsor subsequently married after the initial visa refusal and before the review application was finally determined by the Tribunal. The Tribunal was notified of this marriage, and a marriage certificate was provided.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the refusal and before the final determination of the review, the application should be remitted for reconsideration as a spouse visa application. This involved determining 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 if a visa applicant validly marries the sponsor after a Prospective Marriage visa refusal and notifies the Tribunal before the review is finalised, the Tribunal must remit the application to the Minister. This remittal is with a direction that the application be treated as an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the Migration Act 1958, which directs that Part VA of the Marriage Act applies for recognising foreign marriages, subject to certain exceptions not relevant here. As the marriage in Lebanon was validly solemnised under local civil law and the applicant had provided proof of divorce from a previous marriage, 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 it 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 the remittal.