VU (Migration)

This matter concerned an application for review by the Tribunal of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant informed the Tribunal that they had married the prospective spouse after the delegate's decision but before the review application was determined, and provided a marriage certificate.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the refusal and before the determination of the review application, the application should be remitted to the Minister for reconsideration as an application for a Partner visa. The Tribunal was required to consider the application of r.2.08E of the Migration Regulations 1994 and the recognition of foreign marriages under the Marriage Act 1961.

The Tribunal reasoned that where a marriage occurs after a Prospective Marriage visa refusal and is notified to the Tribunal before the review is finalised, r.2.08E(2A) mandates that the application be remitted to the Minister. This allows the application to be treated as one for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the marriage, solemnised in Vietnam and evidenced by a marriage certificate, was recognised as valid for the purposes of the Act, as it did not fall within any of the exceptions to recognition under Part VA of the Marriage Act.

Consequently, 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.