Dolatkhahnejad (Migration)

This matter concerned a Partner (Provisional) (Class UF) visa, subclass 309, where the applicant, Salar, was the secondary applicant and the biological son of the primary applicant. The dispute centred on whether Salar qualified as a member of the family unit of the primary applicant at the time of the combined visa application. The Tribunal was required to determine if Salar met the criteria for a subclass 309 visa, specifically whether he was a dependent child and a member of the family unit of the primary applicant.

The Tribunal considered whether Salar met the requirements of cl.309.311, which necessitates being a member of the family unit and having made a combined application with a person satisfying the primary criteria. It was established that the primary applicant held a subclass 309 visa, thus meeting the primary criteria. The Tribunal was satisfied that Salar made a combined application with his mother, the primary applicant. The core issue then became whether Salar was a member of the family unit as defined by r.1.12 at the time of application.

The Tribunal found that Salar, born in 1992, was 21 years old at the time of the application on 6 October 2013. Based on identification documents, Salar was confirmed as the biological son of the primary and review applicants. Although the primary and review applicants were divorced, the Tribunal gave significant weight to the fact that the Department granted the primary applicant a subclass 309 visa despite the divorce. This led the Tribunal to conclude that the Department accepted the divorce was obtained to enable Salar to avoid national service, and that the spousal relationship remained genuine. Consequently, the Tribunal was satisfied that Salar was the child of the primary applicant and, given the circumstances surrounding the divorce and his exemption from national service, was considered a dependent child and a member of the family unit. The Tribunal remitted the application for reconsideration, directing that the visa applicant met the criteria under cl.309.311.