White (Migration)

This matter concerned an application for review of a decision to refuse a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant informed the Tribunal that the visa applicant had married the prospective spouse in Delhi, India, after the initial refusal but before the review application was determined. Evidence of this marriage, a Certificate of Marriage, was provided to the Tribunal.

The primary legal issue before the Tribunal was whether the circumstances of the marriage occurring during the review period triggered specific provisions of the *Migration Regulations 1994* (the Regulations) requiring the application to be remitted for reconsideration as a spouse visa application. The Tribunal also considered the validity of the foreign marriage for the purposes of the *Migration Act 1958* (the Act).

The Tribunal reasoned that regulation 2.08E of the Regulations mandates that if a visa applicant validly marries the sponsor after a decision to refuse a Prospective Marriage visa and notifies the Tribunal before the review is finalised, the application must be remitted to the Minister. This allows the applicant to be assessed for a Partner (Migrant) (Class BC) or Partner (Provisional) (Class UF) visa. The Tribunal applied section 12 of the Act, which directs that Part VA of the *Marriage Act 1961* applies for recognising foreign marriages, subject to certain exceptions not relevant here. Finding that the marriage was validly solemnised in India and recognised under Australian law, and that the applicant had notified the Tribunal of the marriage, the Tribunal concluded that the requirements of regulation 2.08E(2A) were satisfied.

Consequently, 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 remittal.