1729408 (Migration)

This matter concerned an appeal by visa applicants against a decision regarding their eligibility for Partner (Provisional) (Class UF) visas, specifically Subclass 309. The primary dispute centred on whether the secondary applicants, including a child and grandchild of the sponsor, qualified as members of the family unit for the purposes of the visa application. The case was heard by Member Helena Claringbold.

The legal issues before the Tribunal were whether the secondary visa applicants met the definition of "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. This definition includes a dependent child or a dependent child of a dependent child, or a relative who is unmarried, usually resides in the household, and is dependent on the family head. The Tribunal was required to assess the applicants' status as dependent children and their relationship to the sponsor and primary applicant, particularly in light of the applicant’s marriage and subsequent child, and conflicting statements regarding her dependency and the nature of her marriage.

The Tribunal considered evidence including DNA results confirming the sponsor's paternity of the applicant, and statutory declarations. A key point of contention was the applicant's marriage, which occurred after the visa application date. While a statement from the sponsor indicated the marriage was forced and not recognised under Pakistani or Australian law, another statement from the primary applicant declared the applicant had recently married and was living with her husband. The Tribunal also noted concerns about the process of obtaining third-party statements, which may not have accurately reflected the authors' individual information. Furthermore, the Tribunal considered the impact of section 375A certificates issued by the Department, which restricted the disclosure of certain information related to confidential sources.

Ultimately, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the first named applicant met the criteria under cl.309.311 of Schedule 2 to the Regulations, and that the second named visa applicant should be considered against the relevant criteria for the grant of the visa.