Ho (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application concerning a Partner (Temporary) (Class UK) visa, specifically a Subclass 300 Prospective Marriage visa. The review applicant had applied for a Prospective Marriage visa, which was refused by the Minister's delegate. Subsequently, the primary visa applicant married the sponsor after the delegate's decision but before the Tribunal had finally determined the review application. The Tribunal was notified of this marriage.

The central legal issue before the Tribunal was whether, upon notification of a valid marriage occurring after a Prospective Marriage visa refusal and prior to the final determination of a review application, the Tribunal was mandated to remit the application to the Minister for reconsideration as an application for a different class of partner visa. This also involved determining the validity of the foreign marriage for the purposes of the *Migration Act 1958* (Cth).

The Tribunal reasoned that regulation 2.08E of the *Migration Regulations 1994* (Cth) specifically addresses this scenario. It requires the Tribunal to remit a visa application to the Minister for reconsideration if the visa applicant validly marries the sponsor after the refusal and notifies the Tribunal of the marriage before the review is finalised. The Tribunal applied section 12 of the *Migration Act 1958* (Cth), which incorporates Part VA of the *Marriage Act 1961* (Cth), to recognise the marriage solemnised in Vietnam as valid for Australian migration law purposes, as it met the general criteria for recognition of foreign marriages and no exceptions applied. The Tribunal found that the requirements of r.2.08E(2A) were met.

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