Mina (Migration)

This matter concerned an application for review by a sponsor of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that the visa applicant and the sponsor had married in Tripoli 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 visa application.

The primary legal issue before the Tribunal was whether the subsequent marriage triggered the provisions of regulation 2.08E of the Migration Regulations 1994, which mandates the remission of the application to the Minister for reconsideration as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. This required the Tribunal to determine if the marriage was validly recognised under Australian law for the purposes of the Migration Act 1958.

The Tribunal applied section 12 of the Migration Act, which directs that Part VA of the Marriage Act 1961 applies to the recognition of foreign marriages. It noted that foreign marriages recognised under local civil law are generally recognised in Australia, subject to specific exceptions. The Tribunal was satisfied, based on the evidence provided, that the marriage in Tripoli was recognised under local civil law and did not fall within any of the exceptions that would render it invalid. Consequently, the Tribunal found that the requirements of regulation 2.08E(2A) were met.

The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the application be treated as also being an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission.