Vuong (Migration)

This matter concerned a review application made to the Tribunal by a sponsor regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. 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 parties' subsequent marriage, the visa application should be remitted to the Minister for reconsideration as an application for a Partner visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the validity of the marriage under Australian law, specifically 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 decision to refuse a Prospective Marriage visa and before the review application is determined, the Tribunal must remit the application to the Minister. The Tribunal applied section 12 of the Migration Act 1958, which directs that Part VA of the Marriage Act applies for the purpose of recognising foreign marriages, subject to certain exceptions. The Tribunal was satisfied, based on the provided marriage certificate, that the marriage solemnised in Vietnam was valid under Vietnamese civil law and therefore recognised in Australia. As the applicant had notified the Tribunal of the marriage and it was recognised as valid, the requirements of regulation 2.08E(2A) were met.

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 remittal.