1932917 (Migration)

This matter concerned an appeal by a secondary applicant for a Partner (Provisional) (Class UF) visa, Subclass 309, against a decision made by the delegate. The core dispute revolved around whether the secondary applicant, who was the sister of the primary applicant and sponsor, met the definition of a "member of the family unit" as required by the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the secondary applicant was "dependent" on the primary applicant, who was the head of the household.

The legal issues before the Tribunal were whether the secondary applicant satisfied the criteria for being a member of the family unit under clause 309.311 and continued to be so under clause 309.321 of Schedule 2 to the Regulations. This required an assessment of whether the secondary applicant met the definition of "dependent" as outlined in regulation 1.05A, which includes being wholly or substantially reliant on the other person for financial support for basic needs, and whether this reliance was greater than any other source of support. The Tribunal also considered the definition of "member of the family unit" in regulation 1.12, which, for a relative, requires the person to not have a spouse or de facto partner, be usually resident in the family head's household, and be dependent on the family head.

The Tribunal reasoned that the secondary applicant, being the sister of the primary applicant and sponsor, was a relative. Evidence indicated she resided with the primary applicant, who was the head of the household. The delegate's decision had been based on a finding that the secondary applicant had not demonstrated sufficient financial reliance on the primary applicant, particularly given the primary applicant's own unemployment and reliance on the sponsor. However, the Tribunal found that the delegate had not adequately considered the specific circumstances, including the secondary applicant's deafness and the family's financial arrangements, which suggested a greater degree of dependence than initially assessed. Consequently, the Tribunal concluded that the secondary applicant did satisfy the requirements of clauses 309.311 and 309.321.

Accordingly, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal directed that the secondary visa applicant be considered to meet the criteria for a Subclass 309 (Partner (Provisional)) visa under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.