Abo Hamed (Migration)

This matter concerned an application for review by the sponsor of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that the visa applicant and sponsor had married after the delegate's decision but before the review application was finally determined. The Tribunal was provided with a marriage certificate from Syria, which it accepted as genuine.

The primary legal issue before the Tribunal was whether, in light of the parties' subsequent marriage, the visa application should be remitted for reconsideration as an application for a spouse visa. This required determining if the marriage was valid for the purposes of the *Migration Act 1958* (Cth) and if the requirements of Regulation 2.08E of the *Migration Regulations 1994* (Cth) were met.

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 notifies the Tribunal 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 also being for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the *Migration Act 1958* (Cth) and Part VA of the *Marriage Act 1961* (Cth) to recognise the validity of the foreign marriage, finding no exceptions applied.

The Tribunal remitted the visa application to the Minister for reconsideration, directing 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.