Akbari (Migration)

This matter concerned an appeal by the applicants against a decision concerning their applications for Partner (Provisional) (Class UF) visas, Subclass 309. The primary dispute revolved around whether the secondary visa applicants, who claimed to be members of the family unit of the primary applicant, satisfied the relevant secondary criteria under cl.309.311 of the Regulations at the time of their application. The court was required to determine if the secondary applicants met the definition of a "member of the family unit" as defined by regulation 1.12(1) of the Migration Regulations 1994, specifically in relation to their status as dependent children of the primary applicant.

The Tribunal considered the definition of "member of the family unit" under regulation 1.12(1), which includes dependent children. The Tribunal was satisfied, based on the evidence presented, that at the time of the visa application on 8 December 2013, the secondary applicants were the biological children of the sponsor and primary visa applicant, and were aged between 14 and 17 years. Crucially, the Tribunal found that they were not engaged to be married, nor did they have a spouse or partner at that time. Therefore, the Tribunal concluded that the secondary applicants met the criteria of being dependent children and thus members of the family unit of the primary visa applicant at the time of application.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the applications for the visas to the Minister for reconsideration. The remittal was with the direction that all secondary visa applicants met the criteria specified in cl.309.311 and cl.309.321 of Schedule 2 to the Regulations, allowing for further consideration of any remaining criteria for a Subclass 309 visa.