2100116 (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant Partner (Provisional) (Class UF) visas, Subclass 309, to two secondary applicants. The applicants, along with their mother as the primary applicant, had applied for the visa on 14 March 2013, based on their relationship with their sponsor and father. The delegate's refusal was based on concerns that the applicants did not satisfy clause 309.311 of Schedule 2 to the Migration Regulations 1994, specifically regarding whether they were dependents and members of the family unit. The review was heard by Steven Griffiths of the Migration and Refugee Division.

The primary legal issue before the Tribunal was whether the review applicants met the criteria for a Subclass 309 (Partner (Provisional)) visa, particularly concerning their status as dependents and members of the family unit, as required by clauses 309.311 and 309.321 of Schedule 2 to the Migration Regulations 1994. The Tribunal considered evidence relating to the applicants' relationship status, their ages, and the financial support provided by the sponsor.

The Tribunal considered extensive evidence, including documentation and oral testimony from the applicants, the primary applicant, and the sponsor, as well as submissions from their migration agent. It accepted that the review applicants were the children of the sponsor and primary applicant and that the family had lived as illegal refugees in Iran since 2010. The Tribunal also accepted evidence of the sponsor's travel to Iran to be with his family and noted the challenging circumstances faced by Afghan refugees in Iran, including the risk of deportation, which had led the review applicants to remain largely confined to their rented accommodation. The Tribunal found that the review applicants were not married or engaged and did not have partners or children at the time of the decision.

Based on its consideration of the evidence, the Tribunal concluded that the matter should be remitted 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 of Schedule 2 to the Regulations.