Mohammadi (Migration)

This matter concerned a review application before the Administrative Appeals Tribunal (AAT) concerning a refusal to grant a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant, who was the sponsor, had applied to the Tribunal for a review of the delegate's decision. The central issue that arose during the review process was that the visa applicant and the sponsor had married after the initial refusal decision but before the review application was finally determined.

The Tribunal was required to determine whether the circumstances of the marriage occurring during the review period triggered specific provisions of the *Migration Regulations 1994* (Cth). Specifically, the Tribunal needed to assess if the marriage was valid for the purposes of the *Migration Act 1958* (Cth) and if the notification of this marriage to the Tribunal met the requirements of regulation 2.08E. The Tribunal also considered the implications of section 12 of the *Migration Act* and Part VA of the *Marriage Act 1961* (Cth) regarding the recognition of foreign marriages.

The Tribunal reasoned that regulation 2.08E(2A) of the *Migration Regulations* mandates that if a visa applicant validly marries their sponsor after a decision to refuse a Prospective Marriage visa and before the review is finalised, and this marriage is notified to the Tribunal, the application must be remitted to the Minister. The Tribunal was satisfied, based on the evidence provided including a marriage certificate from Afghanistan, that the marriage was valid under the relevant provisions of the *Marriage Act* and that the review applicant had notified the Tribunal of the marriage.

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.