Fakhra (Migration)

This matter concerned a review applicant's application to the Migration Review Tribunal for reconsideration of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The core of the dispute arose because the visa applicant and the sponsor validly married under the civil law of their home country after the delegate's decision but before the Tribunal's determination of the review application.

The Tribunal was required to determine whether regulation 2.08E of the *Migration Regulations 1994* (Cth) applied in these circumstances. Specifically, the Tribunal needed to ascertain if the marriage, occurring after the initial refusal and notified to the Tribunal before the review was finalised, necessitated the application being treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The validity of the foreign marriage for the purposes of the *Migration Act 1958* (Cth) was also a key consideration, referencing Part VA of the *Marriage Act 1961* (Cth).

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, regulation 2.08E mandates that the application be remitted to the Minister. This regulation allows for the applicant to be assessed for a spouse visa. The Tribunal found that the marriage, solemnised in Tehran and evidenced by a marriage certificate and translation, was recognised as valid under Australian law, as it complied with the requirements of Part VA of the *Marriage Act* and no exceptions applied. Consequently, the Tribunal was satisfied that the conditions 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 the remittal.