2100145 (Migration)

This matter concerned an appeal against a decision to refuse a Partner (Provisional) (Class UF) visa, subclass 309. The primary dispute revolved around whether the visa applicants qualified as "members of the family unit" of the primary visa applicant under the Migration Regulations 1994. The Tribunal was tasked with determining if the applicants met the criteria for being a member of the family unit at the time of the visa application and at the time of the decision.

The central legal issues before the Tribunal were 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 whether they could satisfy one of the alternative requirements of clause 309.321 in relation to being members of the family unit at the time of the decision. Specifically, the Tribunal had to consider the definition of "member of the family unit" as provided in regulation 1.12 of the Migration Regulations 1994, which defines a child as someone who is a child or step-child of the family head or their spouse or de facto partner, subject to age and dependency criteria, and also consider if the applicants had been customarily adopted.

The Tribunal found that the definition of "member of the family unit" in regulation 1.12(2)(b) requires the person to be a child or step-child. While the applicants were not married, engaged, or in a de facto relationship at the time of application, the Tribunal examined the claim of customary adoption. The representative argued that the applicants had been customarily adopted by the review applicant due to the death of their parents and their subsequent care by the review applicant and primary visa applicant. However, the Tribunal concluded that a customary adoption had not taken place, and the visa applicants were not adopted children of the primary visa applicant or the review applicant. Consequently, they did not satisfy the definition of "member of the family unit" under the relevant regulations.

The Tribunal affirmed the decision under review, finding that the visa applicants did not meet the criteria to be considered members of the family unit for the purposes of the subclass 309 visa.