Nguyen (Migration)

This matter concerned a review application before the Tribunal concerning a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that they had validly married the visa applicant after the delegate's decision but before the review application was finally determined.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which dictates the procedure when a prospective marriage visa applicant marries their sponsor during the review process. Specifically, the Tribunal had to determine if the marriage was validly recognised for the purposes of the Act, as required by section 12 of the Migration Act 1958 (Cth) and Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that where a prospective marriage visa applicant marries their sponsor after a refusal decision and before the review is finalised, regulation 2.08E mandates that the application be remitted to the Minister. This ensures the applicant is assessed for a spouse visa rather than a prospective marriage visa. The Tribunal was satisfied, based on the provided marriage certificate and translation, that the marriage solemnised in Vietnam was valid under local law and therefore recognised in Australia. Consequently, the requirements of regulation 2.08E(2A) were met.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that it be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, effective from the date of remittal.