Ho (Migration)

This matter concerned a review application before the Tribunal concerning a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor of the visa applicant, had applied to the Tribunal for a review of the delegate's decision. The Tribunal was advised that the parties had since married.

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. This required the Tribunal to determine if the marriage was validly recognised under Australian law for the purposes of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The Tribunal applied regulation 2.08E of the *Migration Regulations 1994*, which 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 application must be remitted to the Minister. This remittal is with a direction that the application be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa. The Tribunal considered section 12 of the *Migration Act 1958* and Part VA of the *Marriage Act 1961* (Cth), which provide for the recognition of foreign marriages solemnised under local civil law, subject to certain exceptions. The Tribunal was satisfied, based on the evidence of a marriage certificate from Vietnam, that the marriage was validly recognised for the purposes of the Act.

Consequently, the Tribunal remitted the visa application 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 remittal.