Nguyen (Migration)

This matter concerned a review by the Tribunal of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant had applied for the visa, the delegate refused to grant it, and the applicant then sought review of that decision. Crucially, the applicant and their prospective spouse married after the delegate's decision but before the Tribunal's final determination of the review application, and the Tribunal was notified of this marriage.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied in these circumstances. Specifically, the Tribunal had to determine if the subsequent marriage satisfied the conditions for the visa application to be treated as an application for a permanent Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. This involved considering whether the marriage was valid for the purposes of the Migration Act 1958 (Cth), which requires regard to Part VA of the Marriage Act 1961 (Cth) concerning the recognition of foreign marriages.

The Tribunal reasoned that where a visa applicant for a Prospective Marriage visa validly marries the sponsor after the refusal decision and before the review is finalised, regulation 2.08E mandates that the application be remitted to the Minister. This regulation allows for the applicant to be assessed for a spouse visa rather than the original prospective marriage visa. The Tribunal was satisfied that the marriage, solemnised in Vietnam and evidenced by a translated certificate, was recognised as valid under Australian law. As the requirements of regulation 2.08E(2A) were met, the Tribunal was obliged under regulation 2.08E(2B) to remit the application.

Consequently, 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 the remittal.