Nadiri (Migration)

This matter concerned an appeal before the Tribunal regarding applications for Partner (Provisional) (Class UF) visas, specifically Subclass 309 (Spouse (Provisional)). The primary dispute centred on whether two secondary applicants, Miss Shaima Naderi and Miss Fatima Naderi, were members of the Primary Applicant’s family unit, as defined by the Migration Regulations. The delegate had previously concluded they were not, citing sub regulations 1.12(1)(e)(ii) and 1.12(1)(e)(iii).

The Tribunal was required to determine whether the secondary applicants qualified as members of the family unit for the purposes of the visa application. This involved interpreting the definitions of "member of the family unit" under regulation 1.12 and "dependent child" under regulation 1.03 of the Migration Regulations. The delegate's refusal was based on specific sub-provisions, but the Tribunal considered whether other provisions, particularly sub regulation 1.12(1)(b) concerning dependent children, might apply.

The Tribunal accepted that the secondary applicants were the biological children of the sponsor. It then considered the definition of "member of the family unit" in regulation 1.12, noting that sub regulation 1.12(1)(b) allows for a person to be a member of the family unit if they are a dependent child of the family head or their spouse or de facto partner. The Tribunal also referred to the definition of "dependent child" in regulation 1.03, which includes children under 18, and those over 18 who are dependent or incapacitated for work, provided they do not have a spouse or de facto partner or are not engaged to be married. The Tribunal found that the delegate had not considered the applicability of sub regulation 1.12(1)(b) in circumstances where the secondary applicants were the sponsor's biological children.

Ultimately, the Tribunal decided to remit the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Department. This reconsideration was to be conducted with a direction that the visa applicants meet the criteria under clause 309.324 of Schedule 2 to the Regulations. The Tribunal noted that clause 309.324, which relates to special return criteria, was met as neither secondary applicant had previously been in Australia.