TSVANHU (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309, where the secondary applicant was a grandson under the custody and guardianship of the primary applicant, his grandfather. The mother of the grandson had passed away, and court orders from the applicants' home country were provided to the Tribunal.

The central legal issue before the Tribunal was whether it had made a decision without hearing necessary, and if so, whether the matter should be remitted for reconsideration. Specifically, the Tribunal was required to determine if the material before it was sufficient to make a decision without a hearing, or if a hearing was mandated by the circumstances of the case, particularly concerning the custody and guardianship arrangements of the grandson.

The Tribunal acknowledged that it had not considered a hearing to be necessary, having found in favour of the applicant based on the material before it, pursuant to s 360(2)(a) of the Migration Act 1958 (Cth). However, the Tribunal ultimately decided to remit the application for reconsideration. This remittal was accompanied by a direction that the applicant meets the criteria specified in cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth).