2015666 (Migration)

This matter concerned an application for Partner (Provisional) (Class UF) visas, Subclass 309, made by the review applicant and other visa applicants, who claimed to be the biological children of the primary visa applicant and her partner. The core dispute was whether, at the time of the application on 30 June 2013, the visa applicants qualified as members of the family unit of the primary visa applicant. The decision was made by Meena Sripathy, a Member of the Tribunal.

The Tribunal was required to determine if the visa applicants were members of the family unit of the primary visa applicant at the time of the application, as defined by the relevant regulations. Specifically, the Tribunal had to consider the definitions of "member of the family unit," "dependent child," and "dependent" as they applied to the circumstances of the applicants, particularly in relation to their claimed dependency on the primary visa applicant and her partner. The Tribunal also had to consider the applicability of clause 309.321(b) of Schedule 2 to the Regulations, given that the primary visa applicant had been granted Subclass 309 and Subclass 100 visas.

The Tribunal reasoned that clause 309.321(b) was applicable in the present case, as the primary visa applicant had been granted the relevant visas. The Tribunal applied the definition of "member of the family unit" as it stood at the time of the application, which included a "dependent child." The definition of "dependent child" required the child to be under 18 or over 18 and dependent. The definition of "dependent" required substantial reliance on the other person for financial support for basic needs for a substantial period, with that reliance being greater than any other source of support. The Tribunal noted the prolonged processing time of the application, which had been made almost nine years prior, and observed that the identity documents for the primary visa applicant and two youngest children had been verified.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. The Tribunal directed that the first named visa applicant met the criteria for a Subclass 309 (Partner (Provisional)) visa under clauses 309.311 and 309.321(b) of Schedule 2 to the Regulations. The Tribunal also recommended that priority processing be given to the applications of the remaining family members.