Hosseini (Migration)

The Administrative Appeals Tribunal (Cth) considered an application for review of a delegate's decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant, an Australian citizen, had sponsored the visa applicant, an Afghan citizen residing in Iran. The core of the dispute was that the visa applicant and the sponsor had married after the delegate's refusal decision but before the Tribunal had finally determined the review application.

The Tribunal was required to determine whether the provisions of r.2.08E of the *Migration Regulations 1994* (Cth) applied in circumstances where the parties married after the initial visa refusal and prior to the final determination of the review application. Specifically, the Tribunal needed to ascertain if the marriage was valid for the purposes of the *Migration Act 1958* (Cth) and if the notification of this marriage to the Tribunal triggered the mandatory remission of the application.

The Tribunal reasoned that s.12 of the *Migration Act* and Part VA of the *Marriage Act 1961* (Cth) provided for the recognition of foreign marriages validly solemnised under local civil law, subject to certain exceptions not relevant in this case. The Tribunal was satisfied, based on a marriage certificate issued by the Consulate-General of the Islamic Republic of Afghanistan, that the parties had validly married in Iran. Consequently, the Tribunal found that the requirements of r.2.08E(2A) were met, as the visa applicant had married the prospective spouse after the delegate's decision and before the review application was finally determined, and the Tribunal had been notified of this marriage.

In accordance with r.2.08E(2B), the Tribunal remitted the visa application to the Minister for reconsideration. The remission was accompanied by a direction that the application 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 remission.