Tchekanabo (Migration)

This matter concerned an application for review by a visa applicant of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant subsequently married the sponsor after the initial refusal and before the Tribunal had finally determined the review application. The Tribunal was required to consider whether this subsequent marriage impacted the review process and the applicant's eligibility for a spouse visa.

The primary legal issue before the Tribunal was the application of regulation 2.08E of the Migration Regulations 1994. Specifically, the Tribunal had to determine whether the circumstances met the requirements of this regulation, which dictates the Tribunal's obligations when a prospective marriage visa applicant marries their sponsor during the review period. This involved assessing whether the marriage was validly recognised for the purposes of the Migration Act 1958, and whether the notification and timing requirements of the regulation had been satisfied.

The Tribunal reasoned that where a prospective marriage visa applicant marries their sponsor after a refusal but before the review is finalised, and notifies the Tribunal of this marriage, regulation 2.08E mandates that the application be remitted to the Minister. This remittal allows the application to be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied, based on the provided marriage certificate from Malawi, that the marriage was validly recognised under Part VA of the Marriage Act 1961. Consequently, the Tribunal found that the conditions of regulation 2.08E(2A) were met.

The Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the application be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, as if made on the day of the remittal.