Dawit (Migration)

The Administrative Appeals Tribunal considered the case of Dawit, involving an application for a Partner (Provisional) (Class UF) visa, subclass 309. The primary dispute concerned whether the secondary applicants, nieces of the primary applicant, qualified as members of the family unit for the purposes of the visa application. The delegate had previously determined that the secondary applicants did not meet the definition of a "child" under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), as they were neither biological nor formally adopted children of the primary applicant.

The legal issues before the Tribunal were whether the secondary 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 continued to satisfy the definition of a member of the family unit at the time of the decision, as per clause 309.321. Specifically, the Tribunal had to determine if the guardianship document presented constituted a formal adoption under Ethiopian law, or if alternative adoption arrangements met the criteria outlined in Regulation 1.04.

The Tribunal found that while a formal adoption order under Ethiopian law was not obtained, the primary applicant had attempted to formally adopt the children and was denied by authorities, potentially due to discrimination related to his region of origin. The Tribunal accepted that formal adoption was not available or reasonably practicable in the circumstances, and that the arrangements were not contrived to circumvent migration requirements. Applying Regulation 1.04(1)(c), the Tribunal was satisfied that the children had been customarily adopted, that the child-parent relationship was significantly closer than any other, and that they were dependent children of the primary applicant. Consequently, the Tribunal found that the secondary applicants met the criteria for being members of the family unit at both the time of application and the time of the decision.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, directing that the applicants meet the criteria specified in clauses 309.311 and 309.321 of Schedule 2 to the Regulations.