Phan (Migration)

This matter concerned a review applicant's application to the Migration Review Tribunal for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The Tribunal was advised that the applicant and the visa applicant had since married.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, which would require the Tribunal to remit the application to the Minister for reconsideration as an application for a Partner visa if the parties married after the refusal decision and before the review was determined. The Tribunal also considered the validity of the marriage for the purposes of the Migration Act 1958 (Cth), referencing section 12 of the Act and Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that the visa applicant had applied for a Prospective Marriage visa, which was refused. The review applicant subsequently applied for review of this decision. Crucially, the visa applicant married the prospective spouse in Vietnam after the refusal decision and before the review application was finally determined. The Tribunal was notified of this marriage and was provided with evidence of its validity under Vietnamese law, which is recognised in Australia under Part VA of the Marriage Act. As the requirements of regulation 2.08E(2A) were satisfied, the Tribunal was obliged under regulation 2.08E(2B) to remit the application.

Accordingly, 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.