Tran (Migration)

This matter concerned a review application before the Administrative Appeals Tribunal concerning a refusal to grant a Prospective Marriage (Temporary) (Class TO) visa. The primary visa applicant and the sponsor notified the Tribunal that they had married after the initial refusal decision and before the review application was finally determined.

The central legal issue before the Tribunal was whether, in light of the marriage occurring after the visa refusal but before the review was finalised, the Tribunal was required to remit the application for reconsideration as a partner visa application. This involved considering the application of regulation 2.08E of the Migration Regulations 1994 and the recognition of foreign marriages under Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries the sponsor after a refusal of a prospective marriage visa and notifies the Tribunal before the review is determined, the Tribunal must remit the application to the Minister. The Tribunal was satisfied that the marriage, solemnised in Vietnam and registered on 21 June 2018, was valid for the purposes of the Migration Act, as it met the requirements of Part VA of the Marriage Act. Consequently, the Tribunal found that the conditions for remission under regulation 2.08E(2A) were met.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission.