Nguyen (Migration)

This matter concerned an application for review of a decision to refuse to grant a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant had applied for this visa, the Minister refused to grant it, and the applicant then sought review of that decision. Crucially, after the initial refusal but before the review application was finally determined, the applicant validly married the sponsor in Vietnam.

The Tribunal was required to determine whether regulation 2.08E of the *Migration Regulations 1994* (Cth) mandated the remittal of the visa application for reconsideration. Specifically, the Tribunal had to consider if the applicant's marriage, occurring after the initial refusal and notified to the Tribunal before the final determination of the review, met the requirements of the Regulations for such a remittal. The Tribunal also needed to assess whether the marriage was recognised as valid for the purposes of the *Migration Act 1958* (Cth).

The Tribunal reasoned that regulation 2.08E(2A) requires the Tribunal to remit a visa application to the Minister for reconsideration if the applicant validly marries the sponsor after the refusal decision and before the review is finally determined, provided the marriage is notified to the Tribunal. Section 12 of the *Migration Act* and Part VA of the *Marriage Act 1961* (Cth) provide for the recognition of foreign marriages, subject to certain exceptions which were not relevant in this case. The Tribunal was satisfied that the marriage in Vietnam was validly solemnised and recognised under Australian law. Consequently, the requirements of regulation 2.08E(2A) were met.

In accordance with regulation 2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The direction was 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 the application was remitted.