Shiba (Migration)

The Administrative Appeals Tribunal considered a review application concerning a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The applicant sought review of the delegate's decision to refuse the visa. Crucially, the parties to the application had married after the delegate's decision but before the Tribunal's final determination of the review.

The primary legal issue before the Tribunal was whether, in light of the subsequent marriage, the visa application should be remitted for reconsideration as an application for a partner visa. This required the Tribunal to determine if the marriage was validly recognised under Australian law for the purposes of the *Migration Act 1958* (Cth).

The Tribunal applied regulation 2.08E of the *Migration Regulations 1994* (Cth), which mandates remission of a prospective marriage visa application to the Minister for reconsideration as an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa if the applicant validly marries the sponsor after the refusal decision and before the review is finalised. Section 12 of the *Migration Act 1958* (Cth), read with Part VA of the *Marriage Act 1961* (Cth), provides that foreign marriages recognised under local civil law are generally recognised in Australia, subject to specific exceptions not relevant in this instance. The Tribunal was satisfied that the marriage in Lebanon was validly recognised under Australian law, fulfilling the requirements of regulation 2.08E.

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.