Naseri (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The primary applicant was the sponsor, and the secondary applicant was seeking to be recognised as a member of the family unit. The dispute centred on whether the secondary applicant, who was the husband's sister, met the criteria for being a dependent relative and a member of the family unit under the Migration Regulations 1994.

The Tribunal was required to determine if the secondary applicant satisfied the criteria under cl.309.311 and cl.309.321 of the Migration Regulations. Specifically, the core issue was whether the secondary applicant qualified as a "member of the family unit" as defined in Regulation 1.12, particularly under the limb relating to a "relative" who is usually resident in the family head's household and is on the family head. The applicants contended that the secondary applicant met these requirements, relying on evidence of financial dependence and co-residence.

The Tribunal affirmed the decision not to grant the visa. It found that the secondary applicant did not meet the criteria for being a member of the family unit. While acknowledging the applicants' submissions regarding customary adoption in Afghanistan and the lack of legal adoption provisions there, the Tribunal focused on the definition of "member of the family unit" in Regulation 1.12. The Tribunal concluded that the secondary applicant was not predominantly reliant on the primary applicant for subsistence and support for a substantial period, and that the financial support was provided by a couple, not solely by the primary visa applicant. The secondary visa applicant was subsequently required to move from her home village.