VU (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, who was the prospective spouse of the sponsor, had applied for the visa, which was subsequently refused by the delegate. The review applicant then sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the visa application should be remitted to the Minister for reconsideration, given that the review applicant and the primary visa applicant had validly married after the delegate's refusal decision and before the review application was finally determined. The Tribunal was required to consider the application of regulation 2.08E of the Migration Regulations 1994 and section 12 of the Migration Act 1958 in conjunction with Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that where a visa applicant for a Prospective Marriage visa validly marries the sponsor after a refusal decision and notifies the Tribunal of this marriage before the review is finalised, the Tribunal must remit the application to the Minister. This remittal is with a direction that the application be treated as an application 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 verified certificate of marriage, was recognised as valid under Australian law. Consequently, the requirements of regulation 2.08E(2A) were met.

The Tribunal ordered that the visa application be remitted 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 remittal.