Tran (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, the sponsor, sought review of the delegate's decision. The Tribunal was advised that the visa applicant and the sponsor had married after the delegate's decision and before the review application was finally determined.

The primary legal issue before the Tribunal was whether regulation 2.08E of the *Migration Regulations 1994* (Cth) applied, which dictates the Tribunal's course of action when a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa but before the review is finalised. This regulation requires the Tribunal to remit the application to the Minister for reconsideration, treating it also 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 for the purposes of the *Migration Act 1958* (Cth), referencing Part VA of the *Marriage Act 1961* (Cth).

The Tribunal reasoned that the visa applicant had married the sponsor in Vietnam after the delegate's refusal and before the review application was determined. Evidence of this marriage, including a certificate and translation, was provided. The Tribunal found that this marriage was recognised as valid under Australian law, satisfying the conditions of regulation 2.08E(2A). Consequently, the Tribunal was required by regulation 2.08E(2B) to remit the application.

The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that it be taken also 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.