Nguyen (Migration)

This matter concerned an application for review 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 sponsor had validly married under the civil law of Vietnam after the delegate's decision but before the Tribunal's determination. The Tribunal was required to consider the implications of this subsequent marriage on the review application.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 mandated the remittal of the visa application to the Minister for reconsideration, given that the parties had married after the initial refusal and prior to the final determination of the review. This involved determining if the marriage was recognised as valid for the purposes of the Act, as provided by section 12 of the Act and Part VA of the Marriage Act 1961.

The Tribunal reasoned that where a visa applicant for a Prospective Marriage visa validly marries the sponsor after the delegate's decision and notifies the Tribunal of this marriage before the review is determined, regulation 2.08E(2A) requires the Tribunal to remit the application to the Minister. The Tribunal found that the marriage in Vietnam was valid under local civil law and recognised for the purposes of the Act, satisfying the conditions of the regulation. Consequently, the Tribunal applied regulation 2.08E(2B) to direct that the application be taken also as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.

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 remittal.