2101516 (Migration)

This matter concerned an application for a Partner (Provisional) visa (Subclass 309) before the Administrative Appeals Tribunal. The review applicant sought reconsideration of a decision that refused to grant the visa to a secondary applicant, who was claimed to be the review applicant's brother and the primary applicant's cousin. The central dispute revolved around whether the secondary applicant qualified as a "member of the family unit" under the relevant migration regulations.

The Tribunal was required to determine whether the secondary applicant was a member of the family unit of the primary applicant, who had been granted a Subclass 309/100 visa. Specifically, the Tribunal needed to consider which limb of regulation 1.12(1) of the Migration Regulations 1994 applied, given the claimed familial relationships and the circumstances of customary adoption following the deaths of the secondary applicant's parents. The Tribunal also had to assess the claims of dependency and usual residence within the household.

The Tribunal accepted the review applicant's declaratory evidence regarding the familial relationships. It noted that the delegate had focused on regulation 1.12(1)(e), which requires a relative to be usually resident in the family head's household and dependent. However, the Tribunal also considered the submission that the secondary applicant was a dependent child of the review applicant by way of customary adoption, potentially bringing the matter under regulation 1.12(1)(b). The Tribunal found that the delegate had failed to address this claim of customary adoption. Given the grave situation for Hazaras in Kabul, Afghanistan, the Tribunal remitted the application for reconsideration, directing that the visa applicant met the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.