Mahmoud (Migration)

This matter concerned a review application before the Tribunal regarding a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa. The review applicant, who was the sponsor, had applied to the Tribunal for a review of the delegate's refusal decision. Crucially, after the delegate's decision but before the Tribunal had finally determined the review application, the visa applicant and the sponsor were married. The Tribunal was notified of this marriage and provided with a marriage certificate and translation.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the initial refusal and before the review was finalised, the application should be remitted for reconsideration as a spouse visa application. This required the Tribunal to consider the application of regulation 2.08E of the Migration Regulations 1994 and the validity of the marriage for the purposes of the Migration Act 1958, particularly in relation to Part VA of the Marriage Act 1961.

The Tribunal reasoned that regulation 2.08E(2A) mandates that if a visa applicant marries the sponsor after a decision to refuse a Prospective Marriage visa, and notifies the Tribunal of this marriage before the review application is determined, the Tribunal must remit the application to the Minister. This remittal is with a direction that the application be treated as an application for a Partner (Migrant) (Class BC) and a Partner (Provisional) (Class UF) visa. The Tribunal was satisfied that the marriage, solemnised in Lebanon and evidenced by a certificate, was recognised as valid under Australian law, as it did not fall within the exceptions to recognition under Part VA of the Marriage Act.

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