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Partner 309 Visa Refusal:
Federal Court Reasons

Matter Refused: Alimi v MIAC & Anor [2007] FMCA 1520

This applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister's delegate that the applicant's brother was not entitled to the grant of a Partner (Provisional) (Class UF) subclass 309 spouse visa on the basis that he was a member of the family unit of the applicant's spouse ('the primary visa applicant'').

The applicant's father was killed and his mother abandoned him and his brother shortly after the birth of his brother. His brother started to live with him and his wife at the age of 13 when the applicant got married. After the applicant left Afghanistan in 2001, his brother had been living with his wife and his son since the son was born.

The applicant sent money to his wife for the support of her, the son and his brother. The Tribunal affirmed the decision on the grounds that applicant's brother was a dependent of the applicant rather than his wife and therefore failed to satisfy cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which required a secondary visa applicant to be a member of the family unit of the primary visa applicant. This is not a matter our firm handled.

The issue before the court was whether it was sufficient for the purpose of cl.309.211 if the applicant's brother was dependent on the applicant rather than his wife.

The applicant argued that the Tribunal misinterpreted the definition of member of the family unit in r.1.12 and the definition of dependent in r.1.05A for failing to take into consideration the Department of Immigration and Citizenship's policy which stated that financial support may be attributed to a cohabitating couple even though only one of them may be in receipt of income.

Held: Application was dismissed.

1. The Tribunal correctly understood the relevant Regulations. Regulation 1.12(1)(e)(iii) does not include a person who is a dependent on a spouse of the family head and is confined to a person who is dependent onthe family head. The drafter of the legislation chose to include a spouse in the opening words of r.1.12(1)(e) but not in r.1.12(1)(e)(iii). There is no reason to conclude that the choice was anything other than deliberateor that the words of r.1.12(e)(iii) do not reflect the intention of the drafter. The applicant's interpretation of 18 the Regulations requires the court to read in at the end of r.1.12(1)(e)(iii) the words 'or a spouse of the family head'', that is not permissible under any principle of statutory construction.
2. The Tribunal correctly applied Drake v MIEA (No2) (1979) 2 ALD 634 and the relevant regulation. That regulation was not consistent with the policy. To that extent, the policy was unlawful and the regulation had to prevail.
3. It appears that the overall result in Al Naqi v MIAC [2007] FMCA 874 was correct. The ratio of Al Naqi appears to be that, at least in relation to secondary applicants for a partner visa, where the ultimate source of support is a particular person, the secondary applicant is not the dependent of that person's spouse.

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