Musawi (Migration)

This matter concerned a review application before the Migration Review Tribunal concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas, subclass 300. The review applicant had applied to the Tribunal on 26 October 2016, and subsequently informed the Tribunal that the primary visa applicant and the sponsor had validly married after the delegate's decisions but before the review application was finally determined.

The central legal issue before the Tribunal was whether, in light of the marriage occurring after the visa refusal and prior to the final determination of the review application, the application should be remitted to the Minister for reconsideration as an application for a spouse visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the validity of the foreign marriage under Australian law, specifically Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that where a Prospective Marriage visa applicant validly marries the sponsor after a refusal decision 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 also being for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied, based on the evidence provided including a marriage certificate, translated certificate, and wedding photographs from Iran, that the marriage was valid for the purposes of the Act. Consequently, the requirements of regulation 2.08E(2A) were met.

The Tribunal ordered that the visa application be remitted 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 remittal.