Radings (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 they had married the visa applicant after the primary decision to refuse the visa was made and before the review application was finally determined. The Tribunal was provided with a marriage certificate evidencing a marriage in India on 22 June 2024.

The primary legal issue before the Tribunal was whether regulation 2.08E of the Migration Regulations 1994 (Cth) applied, requiring the visa application to be remitted to the Minister for reconsideration as an application for a permanent Partner visa. This regulation mandates such a remission if the visa applicant validly marries the sponsor after the refusal decision and before the review is finalised, and the Tribunal is notified of the marriage. The Tribunal also considered the validity of the marriage for the purposes of the Act, referencing section 12 of the Migration Act 1961 (Cth) and Part VA of the Marriage Act 1961 (Cth).

The Tribunal reasoned that the notification of the marriage and the provision of a marriage certificate satisfied the requirements of regulation 2.08E(2A). It found that the marriage, solemnised in India, was recognised as valid for the purposes of the Act, as no exceptions under Part VA of the Marriage Act were applicable. Consequently, the Tribunal was satisfied that the conditions for remission under regulation 2.08E(2B) were met.

The Tribunal remitted the visa application to the Minister for reconsideration, with the direction 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 of remission.