Lai (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Partner (Provisional) (Class UF) visa, subclass 309. The primary applicant, Ms. Huang, sought a visa, and the review applicant, Ms. Weng, was a secondary applicant seeking to be recognised as a member of Ms. Huang's family unit. The central dispute was whether Ms. Weng met the criteria to be considered a member of Ms. Huang's family unit at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to determine if Ms. Weng satisfied the criteria set out in clauses 309.311 and 309.321 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether Ms. Weng was a "member of the family unit" of Ms. Huang, as defined by regulation 1.12, and whether she was "dependent" on Ms. Huang, as defined by regulation 1.05A, at the relevant times. The definition of "member of the family unit" under regulation 1.12, applicable to applications lodged after 19 November 2016, requires a child to be under 23 years old and dependent, unless incapacitated for work.

The Tribunal reasoned that Ms. Huang was the "family head" for the purposes of the visa application. It applied the definition of "dependent" in regulation 1.05A, which requires a person to be wholly or substantially reliant on another for financial support for basic needs for a substantial period, and for that reliance to be greater than reliance on any other source. The Tribunal found that Ms. Weng did not satisfy the criteria under clause 309.321. Despite this, the Tribunal considered the applicants' request for referral to the Minister for intervention under section 351 of the Migration Act 1958. The applicants argued that extended processing times by the Department of Home Affairs, which caused Ms. Weng to turn 24 before a decision was made, resulted in an unfair outcome. The Tribunal acknowledged the prolonged processing times and the emotional and financial stress caused, deeming it appropriate to refer the case to the Minister for consideration of his intervention powers.

Ultimately, the Tribunal affirmed the decision not to grant the Partner (Provisional) visa to Ms. Weng, as she did not meet the regulatory criteria. However, the Tribunal decided to refer the matter to the Minister for possible intervention due to the exceptional circumstances arising from extended processing times.