Phan (Migration)

This matter concerned an application for review by a sponsor of a decision to refuse to grant a Prospective Marriage visa. The review applicant and the visa applicant subsequently married after the initial refusal and before the review application was finally determined. The Administrative Appeals Tribunal (the Tribunal) was required to consider the implications of this marriage on the review process.

The primary legal issue before the Tribunal was whether, in light of the marriage occurring after the delegate's decision but before the final determination of the review application, the visa application should be remitted to the Minister for reconsideration as an application for a partner visa. This involved determining whether the marriage was valid for the purposes of the *Migration Act 1958* (Cth) and whether the notification requirements under the *Migration Regulations 1994* (Cth) had been met.

The Tribunal reasoned that regulation 2.08E of the *Migration Regulations 1994* mandates that if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal of the marriage before the review is finalised, the Tribunal must remit the application to the Minister. This remission 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 applied section 12 of the *Migration Act 1958* (Cth), which incorporates Part VA of the *Marriage Act 1961* (Cth) (with certain exceptions not relevant here), to recognise foreign marriages solemnised under local civil law. The Tribunal was satisfied, based on the provided marriage certificate and translation, that the marriage in China was valid and that the review applicant had notified the Tribunal of this marriage.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, directing that it be treated as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa, made on the day of remission.