Manhom (Migration)

The Administrative Appeals Tribunal considered the case of Manhom, a secondary applicant for a Partner (Provisional) (Class UF) visa, Subclass 309. The primary dispute concerned whether the secondary applicant, who was the sister-in-law of the sponsor, qualified as a "member of the family unit" under the Migration Regulations. The sponsor and his wife asserted a guardianship role over the applicant, who they claimed had no other family and was substantially financially reliant on them.

The legal issues before the Tribunal were whether the secondary applicant was formally adopted in accordance with regulation 104 and, crucially, whether she constituted a "member of the family unit" as defined by regulation 1.12 at the time of the visa application and at the time of the decision. This required assessing if she met the criteria outlined in clauses 309.311 and 309.321 of Schedule 2 to the Regulations, which pertain to being a member of the family unit of the primary visa holder.

The Tribunal reasoned that while the applicant was not formally adopted under Australian law or recognised foreign adoption arrangements, the definition of "member of the family unit" in regulation 1.12(1)(d) could encompass a relative who is not married, usually resides in the family head's household, and is dependent on the family head. The evidence indicated substantial financial reliance, including money transfers for subsistence and education, and that the applicant was considered part of the sponsor's family. The Tribunal found that the applicant was dependent on the sponsor and his wife for financial support to meet her basic needs, and this reliance was greater than any other source of support.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clauses 309.311 and 309.321 of Schedule 2 to the Regulations.