Ukash (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of Partner (Provisional) (Class UF) visas, Subclass 820, for two visa applicants. The primary visa applicant, Ms Zemzem Muhammed, had been granted a visa, and the appeal concerned whether the two other applicants were members of her family unit at the time of application and at the time of decision. The sponsor, who had married Ms Muhammed, had provided financial support to the household in Ethiopia prior to their marriage and during his stay with Ms Muhammed and her sisters.

The central legal issue before the Tribunal was to determine whether the two visa applicants qualified as members of the family unit of the primary visa applicant, Ms Zemzem Muhammed, for the purposes of the partner visa application. This required assessing whether they were wholly or significantly financially reliant on Ms Muhammed and whether she could be considered the "family head" in this context, particularly given the late issuance of birth certificates and a court order conferring guardianship.

The Tribunal considered the definition of "family head" under clause 309.311 of the Migration Regulations 1994, which indicated that the primary visa applicant, having satisfied the criteria for a Subclass 309 visa, was the family head. Despite concerns raised by the Department regarding the timing of the issuance of birth certificates and a court order granting guardianship to Ms Muhammed over the visa applicants, the Tribunal accepted, based on the sponsor's statutory declaration and oral testimony, that the visa applicants were the biological siblings of the primary visa applicant. The Tribunal found that Ms Muhammed had taken on the responsibility of raising her younger sisters, fulfilling a moral and cultural duty.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister. The remittal was with the direction that the first-named visa applicant met the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.