Kaur (Migration)

The applicant, Ms Kaur, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Subclass 186 Employer Nomination (Permanent) (Class EN) visa. Ms Kaur had applied for this visa as a member of the family unit of her husband, who was the primary applicant. However, by the time of the AAT's decision, Ms Kaur and her husband had divorced. Ms Kaur was employed in Australia but had not applied for any other visa.

The central legal issue before the Federal Circuit and Family Court of Australia was whether Ms Kaur could still be considered a member of the family unit for the purposes of the Subclass 186 visa application, notwithstanding her divorce from the primary applicant. This required the court to consider the definition of "member of a family unit" as it applied to this visa subclass and the relevant legislative provisions concerning family sponsorship in migration law.

The court reasoned that the definition of "member of a family unit" in the Migration Regulations 1994 requires a continuing relationship at the time of the decision. Given that Ms Kaur and her husband had divorced, they no longer met the criteria for being considered a family unit. The court affirmed the AAT's decision, finding that Ms Kaur was not eligible to be granted the visa as a member of her former husband's family unit.