• cl 309.311 of Schedule 2 to the Regulations
• cl 309.321 of Schedule 2 to the Regulations

MIGRATION - Partner (Provisional) (Class UF) visa - member of a family unit - mental health conditions - entirely dependent on parents for survival and daily functioning - precarious security and legal situation for Afghan refugees in Pakistan - discrimination against Afghan nationals - partial loss of mental functions - substantially incapacitated for paid work - decision under review remitted

Migration Act 1958 (Cth), ss 5, 5F, 65

Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cls 309.311, 309.321; Schedule 4, criterion 4007

Al Naqi v MIAC [2007] FMCA 874

Cole v MIBP [2018] FCAFC 66

Huynh v MIMA [2006] FCAFC 122

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 20 December 2023. The applicant is a national of Afghanistan and currently lives in Quetta, Pakistan. She was included in the partner visa application made by her mother, Ms Salima Nabizada (the primary visa applicant). The sponsor of the application is her father, Mr Shah Hussain Nabizada, an Australian permanent resident. The visa application included the applicant's 5 younger siblings. There are 2 other children who have not been included in the application.
3. The primary applicant and her other children included in the application were granted Subclass 100 visas on 7 February 2025. They arrived in Australia on these visas on 1 March 2025. The primary applicant was overseas from 27 August to 1 October 2025. The sponsor arrived in Australia by boat on 22 February 2012. He was granted a subclass 851 Resolution of Status visa on 21 October 2023.
4. The delegate refused to grant the visa on 7 February 2025 on the basis that the applicant did not satisfy the requirements of cl 309.311 and cl 309.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which require the applicant to be a member of the family unit at the time of application (cl 309.311) and decision (cl 309.321).
5. The applicant appeared before the Tribunal on 28 October 2025 by video, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant's mother, Ms Salima Nabizada and her father, Mr Shah Hussain Nabizada. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
6. The applicant was represented in relation to the review.
7. For the following reasons, the Tribunal has concluded that the decision under review is set aside and matter be remitted for reconsideration.

1. The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant at the time of application and at the time of decision.
2. Section 5(1) of the Act provides that 'member of the family unit' of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides 'member of the family unit' has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.
3. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:
   • the spouse or de facto partner of the family head;
   • a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;
   • a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).
4. In this case, the applicant is claiming to be the dependent child of the family head who is her mother, Ms Salima Nabizada. Various identity documents on the Department's file (including the applicant's birth certificate, Afghan citizen proof of registration Afghanistan identity card and Afghanistan passport) show that the applicant is the child of Mrs Nabizada (the primary visa applicant) and Mr Nabizada (the sponsor).
5. On this basis, the Tribunal is satisfied the applicant is the child of the primary visa applicant. The Tribunal is satisfied on the evidence that the applicant is single - she is not engaged to be married and does not have a spouse or de facto partner.
6. According to the applicant's identity documents, she was born in April 2000. The Tribunal therefore finds that at the time of application on 23 December 2023, she was 23 years old. At the time of this decision, she is 24 years old. The Tribunal finds that as the applicant had turned 23 at the time of the visa application and decision, she must meet reg 1.12(2)(b)(iii), and the remaining parts of reg 1.12(2)(b) do not apply to her.

1. After lodging the visa application, the applicant provided a completed Form 47A dated 14 June 2024. The applicant stated that she was not employed as she was 'suffering from severe mental health issues which prevent her from studying'. The applicant provided a report from her treating psychiatrist, Dr Javed Ali, dated 6 April 2024. This report was reviewed by a Medical Officer of the Commonwealth (MOC) and on 23 May 2024 and the MOC found the applicant met the health requirement.
2. On 18 December 2024, the applicant provided an updated report from her treating psychiatrist. This report was referred to the MOC for a second, updated opinion. On 14 January 2025, the MOC made another finding that the applicant met the health requirements for permanent residence in Australia. The delegate found that the updated health clearance did not indicate that the applicant was mentally or physically incapacitated for work due to total or partial loss of her bodily or mental functions. On this basis, the delegate was not satisfied that the applicant met the definition of 'dependent' in reg 1.05A(1)(b).
3. In assessing whether or not the applicant met the health requirements, the MOC would have considered whether the applicant met criterion 4007 in Schedule 4 to the Regulations. This criterion requires a MOC to make an assessment of whether the applicant is free from tuberculosis; or free from a disease or condition that may result in the applicant being a threat to public health, a danger to the Australian community, or would be likely to result in a significant cost to the Australian community, or prejudice the access of Australians to healthcare or community services.
4. In this case, however, the Tribunal must determine whether the applicant meets the test in reg 1.05A(1)(b). This regulation requires the Tribunal to determine whether a person is incapacitated for work due to the total or partial loss of their bodily or mental functions. Whilst the MOC assessment is relevant to Tribunal's consideration, the Tribunal considers that the MOC's assessment does not necessarily preclude the applicant from meeting the requirements of reg 1.05A(1)(b). This is a question of fact for the Tribunal to determine.

1. In support of her claims, the applicant has provided 3 reports from her treating psychiatrist in Quetta, Dr Javed Ali.
2. In a report dated 6 April 2024, Dr Ali states that the applicant's illness started almost 2 years ago. Her functionality is disturbed in terms of education, self-care and social isolation, making her totally dependent on her parents financially. She is not capable of working. Sometimes she experiences anxiety symptoms such as shortness of breath, palpitations, tremors and irritability. She previously witnessed a bomb blast where she saw many dead bodies and injured people in her neighbourhood. She has been prescribed Sertraline and Trazodone for depression. Her 'ability to live independently or engage in work is significantly limited, necessitating substantial family support. Leaving her alone is strongly discouraged, given heightened risk associated with her psychiatric condition. It is my professional opinion that [the applicant] is incapacitated for work.'
3. In a further report dated 17 December 2024, Dr Ali repeats this information. He states the applicant was diagnosed with depression almost 3 years ago. Her symptoms are episodic and are characterised by low mood, loss of interest and enjoyment, poor sleep quality, lack of appetite and crying spells. She has poor concentration towards her daily activities and worrying thoughts about her future. She feels helpless and hopeless, tired after minor activities and socially withdrawn. Her functionality is disturbed in terms of self-care, wider social context, family and having occupational difficulties, making her totally financially dependent on her father. She completely relies on her mother for financial support, accommodation and day-to-day care. She takes Sertraline, Clonazepam and Propranolol for depression. Her treatment requires ongoing psychotherapy and counselling, and access to proper mental health treatment in an environment free from stigmatisation.
4. The applicant has also provided scripts for various anti-depressant medications dated from 22 February 2022 to 12 December 2024. Recent scripts from Dr Ali, dated 5 August 2025 and 31 October 2025, indicate that the applicant has been prescribed 3 different types of anti-depressant medication.
5. After the hearing, the applicant provided an updated report from Dr Ali dated 31 October 2025. Dr Ali confirms that the applicant continues to experience symptoms of Major Depressive Disorder with anxiety symptoms. She was diagnosed almost 4 years ago. These symptoms include low mood, loss of interest and enjoyment, poor sleep, lack of appetite, crying spells and poor concentration towards her daily activities. She feels tired with activity and is socially withdraw. Occasionally, she experiences shortness of breath, palpitations, restlessness, irritability and worrying thoughts. This condition severely limits her ability to engage in employment, education or independent living. She has difficulty with motivation, concentration and emotional regulation which are core capacities required for financial independence and occupational functioning. These impairments are chronic and unlikely to improve in the foreseeable future. Her capacity to work or support herself is compromised by the persistent loss of mental function.

Evidence provided at hearing - 28 October 2025

1. At the hearing, the applicant confirmed that she had never been married or in a

de facto relationship and she was not engaged. She was currently living with her younger sister, Basira, who was not part of the visa application. The applicant's representative confirmed that as Basira was over 23 years of age at the time of application and did not have any incapacity, she was withdrawn from the visa application. 2. The applicant confirmed that she had only completed a couple of years of primary school before she withdrew. She has not done any further studies and has never worked. 3. The Tribunal asked the applicant about her response in a 'Form 80' personal particulars form, where she stated that she was currently enrolled in private study in a tailoring course. The applicant explained that someone in the neighbourhood used to come and teach her tailoring at home for one hour, twice a week. She cannot remember how long she did this for. That person has now left the area, so she is no longer continuing to learn. 4. When asked how she spends her time day-to-day, the applicant stated that the medication she takes makes you feel sleepy, so she spends a lot of her time sleeping. Otherwise, she watches videos on her phone. When she can, she helps her sister with some of the cleaning and the housework. Her sister does most of the cooking. They used to go out to buy groceries, but it has recently become dangerous for Afghan refugees to be out, as there have been arrests. There are some Pakistani people in the neighbourhood, so her sister gives them money and they get food for them. Her sister is currently doing a photography course nearby. She goes out when it is safe to do so. The applicant relies on her sister to manage the finances and the household. 5. When asked why she has never worked, the applicant stated that because of her depression and the medication she is taking, she has trouble focusing, she has learning difficulties, memory problems and she gets impatient. The medication makes her feel sleepy and gives her shortness of breath. It does help to improve her mood. 6. In relation to her current condition, the applicant confirmed that she continues to take 2 different types of anti-depressant medication. She cannot remember the names of these medications, but she takes one tablet in the morning and one in the evening. She sees her psychiatrist, Dr Ali, every 2 months. At these consultations, he gives her therapy, blood tests and reviews her medication. She has not been able to see him for the last 3 months because of the ongoing arrests of Afghan refugees. He does not do consultations over the phone. 7. When asked about the history of her mental health condition, the applicant stated that she cannot remember exactly when her condition started to deteriorate. After witnessing a bomb blast in Hazara town, in around 2013, she started experiencing panic attacks and heart palpitations. After the bomb blast, there were many dead bodies and body parts around their area and this made her distressed. She cannot remember when she first started seeing Dr Ali, but she saw 2 other doctors before him. Another patient recommended that she started seeing Dr Ali. 8. The applicant stated that she and her sister are fully financially supported by their father (the sponsor). They do not receive financial support from any other sources. Her father regularly sends them money through an agent and her sister collects it. They use this money to pay for rent, food, clothing and medications. 9. The Tribunal also took evidence from the applicant's mother, Mrs Salima Nabizada. She advised that the applicant had always had mental health problems, but the family did not focus on it. Her problems got worse after the 2013 bomb blast in Hazara town. After that, she was unable to sleep and her behaviour changed and they decided to get help for the applicant. They consulted Dr Rasul, who specialised in mental health conditions. The applicant was prescribed medication at this time, and she started taking it at the end of 2015. The applicant started seeing him in 2015 or 2016. She saw him for about 3 to 4 years. They stopped going to see Dr Rasul, as it became difficult to travel to his private clinic. Another lady recommended that that the applicant should see Dr Ali. He was based in Mariabad, which is closer to where they lived and where many other Hazara people live. The applicant started seeing Dr Ali about 3 to 4 years ago. 10. The Tribunal noted that Dr Ali had stated in his reports that the applicant had been diagnosed with depression in about 2021 or 2022. Mrs Nabizada advised that was when the applicant started seeing Dr Ali, but she had experienced depression and had been seeing Dr Rasool before that. 11. Mrs Nabizada advised that in September 2025, she went to visit the applicant in Pakistan and gave her money for medication and bought her food and clothing. She left some money with the applicant for her necessities (later confirmed to be approximately AUD$10 000). 12. The applicant's father, Mr Nabizada, confirmed that he financially supports the applicant. He currently works as a casual concreter. He uses a money exchange service to send money to the applicant and her sister, and he has provided receipts and statements as evidence. The amount he sends depends on how much they need.

Is the applicant incapacitated for work due to the total or partial loss of her bodily or mental functions?

1. The term 'incapacitated for work' is not defined in the Act or Regulations, however it was considered in Cole v MIBP [1]. The Full Federal Court in Cole held that the word 'incapacitated', whether for work or otherwise, does not mean totally incapacitated, and is capable of including substantially incapacitated.[2] The Court in Cole also held that 'work' could only mean 'paid' work. [3]
2. The Tribunal accepts, based on the 3 medical reports from psychiatrist, Dr Javed Ali, that the applicant has mental health conditions of Major Depressive Disorder with anxiety symptoms. The Tribunal accepts the applicant is taking anti-depressant medication and having regular psychiatric consultations to manage these conditions. Dr Ali states that the applicant was first diagnosed with depression in 2021 or 2022, and the Tribunal accepts this is when the applicant first consulted Dr Ali. The Tribunal accepts the evidence of the applicant and her mother that the applicant first started receiving treatment for a mental health condition in 2015 or 2016 and her symptoms became worse after she witnessed a bomb blast in 2013. The applicant and her mother both gave consistent and credible evidence about the nature and duration of her mental health conditions.
3. The Tribunal gives weight to the 3 medical reports from Dr Ali as they are detailed and particular to the applicant's circumstances. Dr Ali has been the applicant's treating psychiatrist for approximately 4 years and is able to provide a comprehensive opinion about the applicant's mental health condition, the nature of her symptoms, her ability to function and her capacity for work. As stated above, whilst the opinion of the MOC may be one relevant factor in assessing the applicant's capacity to work. However, in this particular case, the Tribunal gives greater weight to the opinion of her long-term treating psychiatrist.
4. The medical reports from Dr Ali dated 6 April 2024, 17 December 2024 and 31 October 2025, provide comprehensive information about the applicant's incapacity for work. Dr Ali confirms that the applicant's mental health condition and associated symptoms severely limit her capacity to engage in employment. In his most recent report dated 31 October 2025, he explains that the applicant has difficulty with motivation, concentration and emotional regulation, which are core capacities required for financial independence and occupational functioning. This makes her entirely dependent on her parents for survival and daily functioning.
5. The medical reports are supported by the applicant's own evidence about her capacity to function on a day-to-day basis. She has trouble focusing and memory problems which makes day to day tasks difficult. In addition, the Tribunal accepts that the applicant's medications cause side-effects including sleepiness and shortness of breath. These factors make it difficult for her to function and carry out daily tasks such as cooking, housework, shopping and managing the finances. She relies on her younger sister to perform these duties for her. She spends most of her time sleeping or sitting. The Tribunal accepts the applicant has never worked or undertaken further studies. The private 'tailoring course' she mentioned in her application was only for 2 hours a week and there is no evidence that the applicant did any paid work as a tailor during or following this period of learning.
6. Given the applicant's limitations due to her mental health conditions and the medical evidence before it, the Tribunal is satisfied the applicant is unable to perform paid work. The applicant and her treating psychiatrist have raised other issues which also prevent her from finding work, including the precarious security and legal situation for Afghan refugees in the Pakistan and the discrimination against Afghan nationals. The Tribunal accepts these circumstances also make it difficult for the applicant to find work, but the Tribunal is satisfied that it is the applicant's mental health condition which makes her substantially incapacitated for paid work.
7. For the reasons set out above, the Tribunal finds that the applicant is incapacitated for work due to the partial loss of her mental functions. The Tribunal is satisfied that the applicant's incapacity existed for a substantial period before the time of application, having accepted that her mental health conditions existed in 2015/2016 and that she was diagnosed by the Dr Ali in 2021 or 2022. This was well before the time of application in December 2023. The Tribunal also notes the applicant declared her incapacity due to a mental health condition on the visa application form. The Tribunal is satisfied that her incapacity has continued and exists at the time of the Tribunal's decision, based on the more recent medical evidence.

Is the applicant wholly or substantially reliant on the primary visa applicant for financial support because she is incapacitated for work?

1. When considering whether the applicant is dependent, as required by reg 1.05A(1)(b), the Tribunal must also be satisfied she is 'wholly or substantially' reliant on the other person for financial support at the relevant time.
2. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
3. The Tribunal accepts that the primary applicant (the applicant's mother) does not have her own source of income and relies on the sponsor (the applicant's father), for financial support. The Federal Magistrates Court in Al Naqi v MIAC [2007] FMCA 874 took the view that 'on a broad and practical level financial support for a person's relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.'[4] That indicates that even if the applicant was receiving support from the sponsor, the primary applicant may still be considered to be the source of the support, because it is her spousal relationship with the sponsor that is the reason for the financial support being provided to the child.
4. In this case, the Tribunal accepts that the applicant's father regularly sent money to her mother for a substantial period before the date of application. He uses a money transfer service and invoices for remittances were provided to the Tribunal as evidence. These show that regular transfers were made to the applicant's younger sister from May 2020 to December 2023 and to the applicant's mother from January 2024 to February 2025. The Tribunal accepts that this money was used to pay for the family's (including the applicant's) housing, food, clothing and other expenses. A recent receipt shows that the applicant's father transferred $900 to her in October 2025. The Tribunal also accepts that the applicant's mother took approximately $10 000 to support the applicant when she recently travelled to Pakistan in September 2025.
5. The Tribunal therefore finds the applicant is financially dependent on the sponsor, and in turn, on the primary applicant, to meet her basic needs of food, shelter and clothing. The Tribunal finds that this dependency existed for a substantial period immediately before the time of application and at the time of decision. The Tribunal accepts that the applicant does not receive income from other sources.
6. The Tribunal finds the applicant is wholly reliant on the primary applicant and the sponsor for financial support because she is incapacitated for work, due to the partial loss of her mental functions. She therefore meets the definition of 'dependent' in reg 1.05A(1)(b).
7. The Tribunal is satisfied the applicant is not engaged and does not have a spouse or

de facto partner. She is the dependent child of the family head (her mother) or the spouse of the family head (her father) as defined in reg 1.05A(1)(b). Therefore, she meets the definition of 'member of a family unit' in reg 1.12(2)(b)(iii). The Tribunal finds these requirements are met at the time of application and at the time of decision. 8. The Tribunal finds the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. She therefore meets cl 309.311 at the time of application. 9. The Tribunal finds the applicant continues to be a member of the family unit of her mother, and that her mother is the holder of a subclass 309 visa, having satisfied the primary criteria. The applicant therefore meets cl 309.321 at the time of decision.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:
   • cl 309.311 of Schedule 2 to the Regulations
   • cl 309.321 of Schedule 2 to the Regulations

Representative for the Applicant: Mr Besmellah Rezaee

(1) This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

(2) A person is a member of the family unit of another person (the family head) if the person is:

(a) a spouse or de facto partner of the family head; or

(b) a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

(i) has not turned 18; or

(ii) has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

(c) is a dependent child of a person who meets the conditions in (b).

This subregulation has effect subject to the later subregulations of this regulation.

(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

[1] [2018] FCAFC 66.

[2] Cole v MIBP [2018] FCAFC 66 at [24]. This decision overturned the decision of the lower court in Cole v MIBP [2017] FCCA 2234, which had held that 'incapacitated' means totally incapacitated for work.

[3] Cole v MIBP [2018] FCAFC 66 at [25].

[4] Al Naqi v MIAC [2007] FMCA 874 at [16].