Salem (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TU) visa. The review applicant, who was the sponsor, applied to the Tribunal for review of the delegate's decision. The Tribunal was advised that the applicant and the sponsor had since married.

The primary legal issue before the Tribunal was whether, in light of the subsequent marriage between the applicant and the sponsor, the visa application should be remitted for reconsideration as an application for a spouse visa. This required determining if the marriage was validly entered into and recognised under Australian law, and if the procedural requirements for remission under the Migration Regulations 1994 were met.

The Tribunal reasoned that regulation 2.08E of the Migration Regulations 1994 mandates remission of a prospective marriage visa application to the Minister for reconsideration if the applicant validly marries the sponsor after the initial refusal and before the review is determined. Section 12 of the Migration Act 1961, read with Part VA of the Marriage Act 1961, provides for the recognition of foreign marriages in Australia, subject to certain exceptions. The Tribunal was satisfied, based on the evidence of a marriage certificate from Lebanon, that the parties had married and that this marriage was recognised as valid for the purposes of the Act. Consequently, the requirements of regulation 2.08E(2A) 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.