2015556 (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of Partner (Provisional) (Class UF) visas, subclass 309. The primary dispute revolved around whether the visa applicants qualified as members of the family unit of the primary visa applicant, as defined by the Migration Regulations 1994, at the time of application and at the time of the decision. The Tribunal was required to consider the applicants' relationship to the primary visa applicant, their usual residence, and their dependency.

The legal issues before the Tribunal were twofold: firstly, whether the visa applicants were members of the family unit of the primary visa applicant at the time of application, satisfying clause 309.311 of Schedule 2 to the Regulations; and secondly, whether they met one of the alternative requirements of clause 309.321 in relation to being members of the family unit at the time of the decision. The Tribunal also considered a non-disclosure certificate placed on departmental folios, ultimately finding it invalid but not intending to disclose the information contained within.

The Tribunal reasoned that for the applicants to be considered members of the family unit under regulation 1.12(1)(e) at the time of application, they needed to be a relative of the primary visa applicant, not have a spouse or de facto partner, be usually resident in the primary visa applicant's household, and be dependent on the primary visa applicant. While acknowledging the difficult circumstances faced by the applicants, including their status as Hazara refugees in Pakistan and the separation from the primary visa applicant if granted visas, the Tribunal determined that the applicants did not satisfy the criteria for being a member of the family unit at the time of application. The Tribunal also considered a referral for Ministerial Intervention but decided against it, as it would have resulted in the separation of the visa applicants from the primary visa applicant, which it found undesirable.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visas to the applicants.