Hamdan (Migration)

This matter concerned a review application before 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 visa applicant and the sponsor had since married.

The primary legal issue before the Tribunal was whether, in light of the subsequent marriage between the applicant and the sponsor, the visa application should be remitted to the Minister for reconsideration as an application for a spouse visa, rather than continuing as a prospective marriage visa application. This required the Tribunal to consider the validity of the foreign marriage for the purposes of the *Migration Act 1958* (Cth) and the application of regulation 2.08E of the *Migration Regulations 1994* (Cth).

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant validly marries their sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal before the review is determined, the application must be remitted to the Minister. The Tribunal applied section 12 of the *Migration Act* and Part VA of the *Marriage Act 1961* (Cth) to determine the validity of the marriage solemnised in Lebanon, finding that it was recognised under local civil law and did not fall within any exceptions that would render it invalid for Australian migration purposes. The Tribunal was satisfied that the marriage was valid and that the requirements of regulation 2.08E(2A) were met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that it be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of the remittal.