Hang (Migration)

This matter concerned an application for review by a sponsor of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa (subclass 300). The Administrative Appeals Tribunal (the Tribunal) was advised that the applicant and the sponsor had married after the initial decision was made and before the review application was finally determined. The Tribunal considered the implications of this subsequent marriage on the visa application.

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 spouse visa, rather than continuing as a prospective marriage visa application. This required the Tribunal to determine if the marriage was valid for the purposes of the *Migration Act 1958* (Cth) and if the conditions stipulated in the *Migration Regulations 1994* (Cth) for such a remission were met.

The Tribunal reasoned that regulation 2.08E of the *Migration Regulations 1994* mandates remission of a prospective marriage visa application to the Minister for reconsideration if the applicant validly marries the sponsor after the refusal decision and before the review is finalised. Section 12 of the *Migration Act 1958* (Cth) provides that foreign marriages recognised under local civil law are generally recognised in Australia, subject to certain exceptions not relevant in this instance. The Tribunal was satisfied, based on the provided marriage certificate from Cambodia, that the parties had validly married and that this marriage was recognised under Australian law. Consequently, the Tribunal found that the requirements of regulation 2.08E(2A) were satisfied.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission. The Tribunal also noted that the original refusal was based on a lack of police certificates, which had now been provided by both parties.