Begum (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, by the second named applicant, who sought to be recognised as a member of the family unit of the primary visa holder, her son, Abuzar Ghaffari Khan. The first named applicant, who was the spouse of the second named applicant, had died during the proceedings. The decision under review was made by the Tribunal, presided over by Karen Synon.

The central legal issue before the Tribunal was whether the second named applicant qualified as a member of the family unit of the primary visa holder, Abuzar Ghaffari Khan, as defined by clause 457.321 of Schedule 2 to the Regulations. This definition, as applied by the original decision-maker, excluded individuals who were married or in a de facto relationship, pursuant to Regulation 1.12(1)(e)(i).

The Tribunal reasoned that while the second named applicant was initially married to the first named applicant, and thus excluded by the definition, the subsequent death of her spouse on 1 April 2018 fundamentally altered her circumstances. The Tribunal was satisfied, based on the evidence, that the second named applicant had not remarried or entered into a de facto relationship. Consequently, the Tribunal concluded that she was no longer excluded by the definition and was indeed a member of the family unit of her son, Abuzar Ghaffari Khan, thereby satisfying clause 457.321.

The Tribunal determined it had no jurisdiction concerning the first named applicant due to their death. The Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration, with a direction that the second named applicant met the criteria under clause 457.321.