Khadimi (Migration)

The applicant, Mr Khadimi, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his Partner (Provisional) visa (subclass 309). The primary applicant for the visa was Mr Khadimi's wife, Ms Khadimi, who was applying for the visa on the basis of her relationship with her sponsor. Mr Khadimi was seeking to be included as a dependent relative of Ms Khadimi. The Administrative Appeals Tribunal had affirmed the Minister's decision to refuse the visa. The matter came before Meredith Jackson J in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether Mr Khadimi qualified as a "member of the family unit" for the purposes of the visa application, specifically whether he was a "dependent relative" of Ms Khadimi. This required the court to consider the meaning of "financially dependent" in the context of the Migration Regulations 1994 (Cth) and the relevant policy guidelines. The court also had to determine if the Tribunal had erred in its assessment of the financial dependence of Mr Khadimi on Ms Khadimi, particularly in light of the fact that Mr Khadimi's financial situation was supplemented by the sponsor and that Ms Khadimi's income was derived from private students.

Meredith Jackson J found that the Tribunal had made an error of law in its assessment of financial dependence. Her Honour held that the Tribunal had failed to properly consider the evidence regarding the extent of Mr Khadimi's financial dependence on Ms Khadimi, including the fact that Ms Khadimi's finances were supplemented by the sponsor. The Tribunal's approach of comparing Mr Khadimi's dependence on Ms Khadimi with Ms Khadimi's dependence on the sponsor was found to be an incorrect application of the relevant criteria. The court applied the principle that financial dependence is a question of fact and degree, and that all relevant financial circumstances must be considered.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.