Waring (Migration)

This matter concerned a review application before the Tribunal concerning decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas, subclass 300. The review applicant had applied for these visas, the delegate refused to grant them, and the sponsor subsequently applied for a review of those decisions. Crucially, the review applicant and the primary visa applicant married after the delegate's decisions were made and before the review application was finally determined.

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, the application should be treated as an application for a spouse visa. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the validity of the marriage for the purposes of the Migration Act 1958.

The Tribunal reasoned that regulation 2.08E(2A) mandates that where a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal of this marriage before the review is determined, the Tribunal must remit the application to the Minister. This remittal is to be accompanied by a direction that the application be treated as also being an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the Migration Act and Part VA of the Marriage Act 1961 to determine the validity of the marriage solemnised in Vietnam, finding it to be recognised under Australian law.

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