Jawaid (Migration)

This matter concerned a review applicant's application to the Tribunal for review of decisions to refuse to grant Prospective Marriage (Temporary) (Class TO) visas. The core of the dispute revolved around the fact that the visa applicant and the sponsor had validly married under the civil law of Pakistan after the delegate's decision but before the Tribunal's determination of the review application. The Tribunal was required to consider the implications of this subsequent marriage under the *Migration Regulations 1994* (Cth).

The legal issue before the Tribunal was whether, in light of the subsequent marriage, the application for a Prospective Marriage visa should be treated as an application for a Partner visa. Specifically, the Tribunal had to determine if the requirements of regulation 2.08E of the *Migration Regulations 1994* were met, which mandates that if a visa applicant validly marries the sponsor after a refusal decision and before the review is determined, the application must be remitted to the Minister and treated as an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal also considered the validity of the foreign marriage under Australian law, referencing section 12 of the *Migration Act 1958* (Cth) and Part VA of the *Marriage Act 1961* (Cth).

The Tribunal reasoned that the review applicant had provided evidence of a valid marriage in Pakistan, which was recognised under Australian law. As the marriage occurred after the delegate's decision and before the final determination of the review application, and the Tribunal was notified of this marriage, the conditions stipulated in regulation 2.08E(2A) were satisfied. Consequently, the Tribunal applied regulation 2.08E(2B) to direct that the visa application be remitted to the Minister for reconsideration, with the application to be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.