Nguyen (Migration)

This matter concerned a review application before the Tribunal concerning a refusal to grant a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor, sought review of the delegate's decision. Crucially, the parties had married since the initial decision was made and this fact had been notified to the Tribunal.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied in circumstances where a visa applicant for a Prospective Marriage visa validly married the sponsor after the delegate's refusal decision and before the Tribunal's review was finalised. This regulation dictates the Tribunal's obligations when such a marriage occurs.

The Tribunal reasoned that if the conditions of regulation 2.08E(2A) were met, then regulation 2.08E(2B) mandated that the visa application be remitted to the Minister for reconsideration. The Tribunal considered section 12 of the Migration Act 1961 (Cth) and Part VA of the Marriage Act 1961 (Cth) in determining the validity of the marriage. The Tribunal was satisfied, based on the evidence provided including a Vietnamese marriage certificate and supporting documentation, that the parties had validly married in Vietnam and that the marriage was recognised for the purposes of the Act. As the parties had married after the delegate's decision and before the review was determined, and the Tribunal was notified of this marriage, the requirements of regulation 2.08E(2A) were satisfied.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the application 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.