Rehna (Migration)

[2022] AATA 3831

Rehna (Migration) [2022] AATA 3831 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nughmana Rehna

VISA APPLICANT:  Mr Usman Ali

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1929439

DIBP REFERENCE(S):  BCC2018/3954500

MEMBER:Linda Holub

DATE:18 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 18 October 2022 at 10:21am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – two previous sponsorships and marriages – arranged marriages, family violence and divorces – some inconsistent or conflicting evidence – compelling circumstances affecting sponsor – long-standing relationship and valid marriage – mental health – best interests of children – child born to parties – continued separation of child from one parent – close relationship with sponsor’s other children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.20J(2), Schedule 2, cls 309.213, 309.222

CASES
Babicci v MIMIA (2005) 141 FCR 285
Nagaki v MIBP [2016] FCCA 1070

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 June 2018 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the delegate was not satisfied that the circumstances presented by the applicant are significant enough to constitute compelling circumstances as per Regulation 1.20J(2). The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s sister and brother-in-law.

5. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

6. The review applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND  

1. The visa applicant was born in Sarai Alamgir, Punjab Pakistan in October 1989 and is a citizen of Pakistan. He currently resides there and is employed as a manager for a business in commercial and residential furniture.

2. The sponsor who was born in Pakistan in 1984 is an Australian citizen by grant. She came to Australia in December 2002 on a Partner (Provisional) visa (subclass 309) and became an Australian citizen in 2006.

3. According to information submitted by the parties, they first met in December 1996 in Sarai Alamgir, Pakistan through mutual friends. In November 2015 the sponsor returned to Pakistan to attend her cousin’s wedding and reconnected with the visa applicant. Following this meeting the sponsor and visa applicant began spending more time together prior to the sponsor returning to Australia in May 2016.

CONSIDERATION OF CLAIMS AND EVIDENCE

Are the sponsorship requirements met?

1. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

2. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222.

3. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

4. In the sponsorship for a partner to migrate to Australia form submitted to the Department the sponsor completed the section in relation to the sponsorship details and previous sponsorship details. In doing so she declared that she has been in two previous relationships and declared that she sponsored her previous husbands. She sponsored her:

   ·first husband for a Partner visa. His visa application was lodged on 10 April 2006, and he was granted a visa on 20 March 2007. They married on 5 March 2006 and the marriage ended in March 2009.

   ·second husband for a Partner visa. His visa application was lodged on 31 May 2010, and he was granted a visa on 23 August 2011. They married on 17 December 2011 and subsequently divorced.

5. When making the application, the review applicant provided to the Tribunal a copy of the primary decision record. Consistent with the above information, it also records that she previously sponsored her first and second husband for Partners visas. Therefore, the limitations of reg 1.20J apply.

6. Regulation 1.20J is concerned with serial sponsorship and abuse of the partner migration provisions, but it allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'.

7. The meaning of ‘compelling circumstances’ in the context of reg 1.20J was considered by the Full Federal Court in Babicci v MIMIA. The Court held that ‘on any view of the meaning of [compelling], the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the [provision] should be waived’.  In Nagaki v MIBP, the Court identified particular circumstances which of themselves could not constitute compelling circumstances in the context of reg 1.20J.

8. However, this is not to say that the existence of a genuine long-term relationship could not form part of the circumstances which the decision-maker may find amount to compelling circumstances affecting the sponsor. While the Tribunal is not bound by Departmental policy, the policy provides the following examples of compelling circumstances affecting the interests of the sponsor:

   ·the previous partner has died;

   ·the previous partner has abandoned the sponsor, and there are children dependent on the sponsor requiring care and support;

   ·the new relationship is long-standing; or

   ·there are dependent children of the new relationship.[1]

   [1] Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing Reg. 1.20J (re-issue date: 18/11/2016). The examples mirror those provided in the Explanatory Statement to SR 1996 No 211.

9. The policy also identifies the following as relevant when considering waiving the bar on repeat sponsorship:

   ·     the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and

   ·     the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.[2].

   [2] Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing Reg. 1.20J (re-issue date: 18/11/2016).

10. Those examples are not exhaustive, and the Tribunal needs to consider the individual circumstances of each case.

Written evidence provided to the Tribunal

1. On 13 July 2022 the applicant’s representative wrote to the Tribunal requesting the Tribunal consider prioritising the case on the basis of compelling circumstances. Within the request for the case to be prioritised, the representative also outlined the applicant’s claims of compelling circumstances and provided the following evidence:

   ·     a copy of an NSW birth certificate of the parties’ biological child born on 26 September 2017 at Auburn Hospital, NSW, and a copy of the child’s passport.

   ·     letters from the visa applicant’s stepchildren (Adam and Ibrahim) regarding the time that they spent with the visa applicant in Pakistan and referred to some of the difficulties their mother faces.

   ·     phone records showing the visa applicant’s communication with the sponsor and the children and a screenshot from 11 July 2022 showing incoming and outgoing calls between the sponsor and the visa applicant.

   ·     photographs of the visa applicant with his biological daughter and his stepchildren.

   ·     a report from Raja Touma, Clinical Psychologist at Myhealth Medical Centre Burwood of an initial assessment 2022 in respect of the sponsor conducted on 5 July.

2. The submission refers to Clause 3 of the AAT Practice Guidance entitled ‘Prioritising Cases in the Migration and Refugee Division’ which outlines examples of compelling reasons and submits that the continued separation of a child under 18 years from their parent would constitute compelling reasons and submits that the review applicant’s children from her previous relationship consider the visa applicant as their farther and have formed a close bond with him.

3. The report from Ms Touma, outlines that the sponsor reported feeling stressed and overwhelmed and that the sponsor reported the following symptoms:

   ·Low mood

   ·Anhedonia

   ·Worry across multiple domains

   ·Difficulty controlling worry

   ·Tearfulness

   ·Irritability

   ·Difficulty concentrating

   ·Low energy/fatigue

   ·Difficulty falling and staying asleep

   ·Loss of appetite

   ·Feelings of loneliness and isolation

   ·Poor concentration and memory

   ·Low self esteem

   ·Social withdrawal.

4. The clinical psychologist stated that the symptoms are consistent with major depression and likely due to the stress of a long separation from her husband and the demands of raising a family on her own and stated that “it may be helpful for her to continue with counselling sessions to learn strategies to cope with low mood and anxiety symptoms and that it was also worth considering counselling / support for her children as appropriate”. Prior to the hearing the sponsor wrote in a Statutory Declaration that she again saw the psychologist on 30 September 2022.

5. The Tribunal received pre-hearing submissions from the review applicant dated 28 and 29 September 2022. The package received on 28 September 2022 consisted of statements from the review and visa applicants, statements from the review applicant’s parents, her sisters and brothers and brother-in-law and the package of 29 September 2022 consisted of statements made by the review and visa applicants as well as:

   ·a medical report for the review applicant’s mother Ms Gazala Parveen

   ·evidence of Centrelink payment to the review applicant.

   ·evidence of phone calls and video calls between the parties.

   ·photographs of taken in Pakistan of the parties with their children.

   ·evidence of the sponsor sending money to the visa applicant.

   ·a Statutory Declaration provided by the visa applicant addressing the aspects of a relationship that must be assessed to assess whether parties have a genuine commitment to each other. In relation to compelling circumstances visa applicant referred to the review applicant’s former husbands and that she left those relationships because of family violence and abuse. He referred to the love between he and his wife and his respect for her. He stated that she has told him that she is experiencing significant hardship including physical, emotional and financial even though her family does supports her to the extent they can. He stated combined with the fact that they both miss physical and emotional intimacy the review applicant is experiencing depression and stress.

   ·The visa applicant also referred to the parties’ biological daughter who is an Australian citizen. He stated they have serious concerns about her mental health and referred to the special bond between father and daughter. In addition, he referred to the development of a father-child bond that has been established between him and his stepchildren who consider him as their own father. He noted that they are also Australian citizens and that the family wants to live together which is in the best interests of the Australian citizen children.

   ·The visa applicant stated the review applicant’s parents are suffering from depression and stress (the Tribunal notes that no evidence was provided regarding this claim) as a result of seeing the review applicant in the state that she is in.

6. In the migration representative’s submission of 13 July 2022 seeking prioritisation of the case he wrote the child of the parties in an Australian citizen and that the review applicant’s other children have formed a close bond with the visa applicant and consider him as their father. He stated the Tribunal has a responsibility to act in the best interest of the child, particularly when the child is an Australian citizen.

7. In the migration representative’s submission of 29 September 2022, he wrote the visa applicant and their sponsor have a dependent child who is dependent on its parents.

8. It was submitted that an adverse decision of the decision-maker will seriously affect the sponsor who is an Australian citizen and has the potential to cause irreparable physical and mental breakdown to the sponsor (review applicant) and the children. The Tribunal was asked to consider Australia’s obligations under the International Covenants because visa applicant would be separated from his wife and children.

9. It was submitted that:

   ·“There is increasing evidence from the fields of development psychology, neurobiology and animal epigenetic studies that show that neglect, parental inconsistency and a lack of love can lead to long-term mental health problems as well as to reduced overall potential and happiness”.

   ·researchers confirm that when children experience secure attachment, they may be willing to take on challenging tasks, because the parent can be trusted to help in the face of obstacles. It further notes that when they experience anxious attachment, they may develop a negative attitude toward the self and toward challenging learning situations.

10. Two articles were attached to the submission, and quoted from in the submission:

    ·an article entitled ‘What Does Psychology Say about Father- Daughter Relationships?’ by Wasim Kakroo.

    ·in a research article, entitled, ‘The Influence of Father-Child Relationship on Adolescents' Mental Health [Master’s thesis, Minnesota State University, Mankato by. Pyun, Y. S. (2014) Cornerstone: A Collection of Scholarly and Creative Works for Minnesota State University, Mankato.

11. It was submitted that based on the above research reports, that the Australian daughter- child’s mental health and well-being will be well protected and addressed if her father is allowed to live with her during her young age.

12. Reference was made to the visa applicants close and strong bond with his stepchildren who see him as their father. Based on the above research reports, it was submitted that continuous separation from the applicant with whom the children have formed very strong bonds, and father-child relationship will cause irreparable harm to the well-being of the children.

13. In the review applicant’s Statutory Declarations dated 22 and 28 September 2022 (which are the same)

14. In the review applicant’s Statutory Declarations dated 22 and 28 September 2022 (which are essentially the same), she outlines the background to her previous two marriages and sponsorships. She declared that she separated from her second husband at the end of 2015 and visited Pakistan at the start of 2016 and met her current husband Usman Ali on 25 December 1996 at Sarai Alamgir. She wrote that they clicked straight away, and that since she met him, he has been a great provider, role model and supportive partner. They decided to get married on 3 April 2016 and since then their child was born on 26 September 2017. She states that she is concerned that the separation of her daughter from her family will affect her mental health and refers to the special relationship between her daughter and her husband. She also stated the visa applicant has formed a strong fatherly relationship with her other children.

15. The submission of the representative refers to Article 23 of the ICCPR which provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. We note that the separation from her husband will cause significant hardship to the review applicant who is an Australian Citizen. It notes:

    ·that the review applicant and the visa applicant have a biological child and 3 stepchildren (who have formed close bonds with the visa applicant), and all of them are Australian citizens.

    ·that the COVID pandemic is still an issue particularly in a country like Pakistan and therefore, it is not safe to undertake frequent travel to Pakistan. In addition, we also note that it will cause significant financial cost to the applicants to travel to Pakistan. We respectfully request the Tribunal to consider the above when assessing our applicant’s case.

    ·that there are significant health or welfare issues that Ok exist which affect the Australian Citizen who is the sponsor and the review applicant in this case. We have provided a psychologist report from Raja Touma. In the report the psychologist relevantly noted:

    ·the review applicant and her family expressed concerns about the impact of the family’s separation on her children. She reported that her daughter had become quiet and withdrawn since returning from their trip to Pakistan in April. They also reported that her sons are worried about their mother’s mental health and the eldest has started acting out at school and truancy. The above presentation and symptoms are consistent with Major Depression, likely due to the stress of a long separation from her husband and the demands of raising a family on her own. It is likely that unifying the family will help to alleviate this stress/anxiety.

    ·we note that the review applicant suffers from major depression, and it is reasonably assumed that review applicant’s psychological condition would improve when her husband is by her side. We submit that the applicant’s emotional, physical and financial hardship will be significantly reduced if she is united with her husband in Australia.

Evidence provided at hearing

Evidence provided by the review applicant

1. During the course of the hearing the review applicant outlined how the parties met and how their relationship developed. She also provided evidence regarding the contact they have, including the frequency of the contact and the nature of the conversations. The Tribunal was also told about the visa applicant’s video conversations with the children, including his stepsons. The review applicant told the tribunal that she and the applicant usually speak to each other via WhatsApp video calls about two or three times a day.

2. The Tribunal indicated its concerns regarding the fact that claims had been made that the review applicant had been diagnosed with major depression but that aside from her initial appointment, which appeared to coincide with when she sought priority processing with the Tribunal, that she had not had any further appointments, although the Tribunal noted the latest advice that she had another appointment scheduled. Inconsistent evidence was provided by the review applicant and her witnesses regarding the delays in obtaining a second appointment.

3. The Tribunal raised with the review applicant some concerns it held regarding the speed at which she moved from separating from her second husband to a new relationship, given the abuse and difficulty she experienced in her previous two marriages. She provided an explanation to the Tribunal regarding her circumstances and needs at the time, and further details into the development of her relationship with the visa applicant.

Evidence provided by the visa applicant

1. The visa applicant told the Tribunal that he speaks with the review applicant between eight and 10 times per day and outlined the history of the relationship.

2. The visa applicant told the Tribunal the review applicant sends him money when he needs it. He stated that he undertakes some work but following the Covid-19 pandemic it has been much more difficult for him because there has been less work. He told the Tribunal that they have spoken about future plans should he be able to come to Australia. He said that he would look for work and they will have a joint bank account and pool their money and expenses.

3. The Tribunal discussed the review applicant’s mental health issues with him. He stated that she sees a psychologist every day.

Evidence provided by the review applicant’s sister

1. The review applicant’s sister stated that she witnessed the review applicant’s past marriages and how emotionally difficult it has been for her and has also witnessed how much happier she is now. She stated the visa applicant is very supportive of the review applicant. She explained that her sister is very stressed at the moment because of everything that’s happening. She stated the visa applicant is very supportive of all the children and she witnessed this when she went in Pakistan in 2016 for her brother’s wedding. That’s the only time she has personally seen the parties together. However, she stated he speaks to the children every day and she has seen them on videocalls.

2. The witness stated that she understands that the review applicant is now in the predicament of having to provide compelling circumstances affecting her. She stated that the review applicant’s previous two marriages were forced on her by a family decision. She stated that is what happens in Pakistani culture. She stated that the review applicant’s children need a father figure and if the family can reunite that would reduce the stress. She stated that most especially the visa applicant’s daughter is feeling the loss of her father after recently spending an extended period with him and returning to Australia. The Tribunal was told the child has lost a lot of weight and is withdrawn and very quiet and often asks when her dad is going to be here.

3. The Tribunal discussed her attendance at the review applicant’s sessions with the clinical psychologist and the reasons why there was a delay in the review applicant obtaining a further appointment.

Evidence provided by the review applicant’s brother-in-law

1. The witness explained that he is married to the review applicant’s biological sister. He stated that he has known the family for 5 years. He stated that although he did not witness the review applicant’s previous marriages, he has heard a lot about them.

2. The witness stated that he often sees and talks to the review applicant’s children, and he knows they share positive experiences of the visa applicant when they travelled to Pakistan and spent time with him. He stated that the sons miss the visa applicant and see him as their father.

3. The witness stated that he and his wife support the review applicant and her children as much as their own family commitments allow them to, but such support cannot replace a father figure. He stated that the review applicant’s parents assist as much as they can but due to their age and their health and other responsibilities, they can no longer provide her with the same level of support. He told the Tribunal he can tell how much the daughter misses her father and since her return from Pakistan recently she hasn’t been the same referring to her weight loss and that the child is less communicative.

4. The Tribunal discussed with him his attendance at the review applicant’s sessions with the clinical psychologist and the reasons why there was a delay in the review applicant obtaining a further appointment.

Concerns put to the review applicant

1. The Tribunal put a number of concerns to the review applicant in the terms required by s.359AA of the Migration Act. One related to the conflicting evidence regarding how often she had seen the psychologist. The visa applicant gave evidence that she sees the psychologist every day, whereas her own evidence was that she had seen the psychologist on two occasions. In addition, there was conflicting evidence provided regarding how often the parties speak to each other. The visa applicant stated that they talk 8 to 10 times per day whereas the review applicant told the Tribunal that they speak two or three times a day.

2. The review applicant stated that when the children speak with the visa applicant, they may refer to her going to see the psychologist, not actually understanding she has gone to see her GP either for herself or for the children. In relation to the number of times per day they speak she said that the children will often also speak to the visa applicant separately so in his response the visa applicant may have been referring to the total number of calls with the family.

3. The Tribunal explained that it had some concerns that there were slightly different explanations of why she had not had further appointments with the psychologist between her and her witnesses. This is of relevance as she has claimed that she is suffering severe depression and that this is one of the compelling circumstances as to why the provision should be waivered. The Tribunal agreed to provide time for her to provide additional evidence that her psychologist was overseas and that were difficulties in obtaining an appointment.

4. The Tribunal put to the review applicant that it appears that she only started having problems with her previous two husbands after they arrived in Australia. She concurred with this but told the Tribunal that she had not spent a lot of time with her previous two husbands before they came here. She stated that the visa applicant does not have any other family as he is an only child. She stated that the relationship with her is the most important thing to him. She added that she has spent about six months with the visa applicant and at no point has she had any concerns about his behaviour. She stated that he is perfect for her and for her children because he gives her and them time whereas the others didn’t.

Oral submissions made by the review applicant’ migration

1. The representative requested the Tribunal consider the material claims. He reiterated the compelling reasons being the hardship the review applicant would continue to face. He stated that if the visa applicant was with her, it would reduce her mental health issues through his emotional, psychological, and physical support. He stated that she is still young and needs the emotional and physical intimacy from her husband which no one else can provide her.

2. The representative asked the Tribunal to consider the needs of the biological child from the relationship and referred to the written evidence submitted prior to the hearing consisting of a number of research articles regarding father/daughter relationships and how crucial a father’s proximity for the daughter is at this time. He stated he won’t repeat the written submissions regarding the best interest of the children.

3. In relation to some of the inconsistences referred to during the hearing, he stated that when people are new to the hearing environment their thinking in a structured context might be affected. He stated that the evidence showed that the applicant is generally credible as the evidence was largely consistent. He stated that in summary, irreparable damage or harm will be caused to the children which will have a long-term effect on them as well as on the review applicant if the visa is not granted. He stated it will affect their mental health which will in turn affect their physical health.

4. Finally, the representative referred to the evidence that the parties’ marriage is a love marriage. He stated that Pakistani culture is largely based on male chauvinism and male dominates there which is what went wrong with the sponsor’s previous marriages. He stated that she had ultimately found her love.

5. The Tribunal provided until 11 October 2022 for further written submissions.

Post hearing evidence

1. The Tribunal received post hearing submissions dated 11 October 2022. They include:

   ·     a statement from the review applicant.

   ·     a letter from the review applicant psychologist.

   ·     evidence of remittances made by the review applicant to the visa applicant on 26 September and 6 October 2022.

   ·     medical evidence in relation to the review applicant’s sons Ibrahim and Adam and her father.

2. The review applicants statement clarifies an inconsistency between her evidence and that of the visa applicant during the course of the hearing in regard to her appointments with her psychologist. In addition, she again explains that her marriage with her current husband was undertaken under different circumstances than that of her previous two marriages which were arranged by her parents. She refers to the severe hardship she is experiencing caring for four minor children and that her other family members have their own family commitments, and her parents have a number of health issues which means they are not able to assist her in the same way they had done previously.

3. The review applicant refers to the fact that she and the visa applicants have a child who is an Australian citizen, and that his absence is impacting on the child. In the statement she also addresses some elements of the overall evidence provided at hearing in regard to the role her sister and brother-in-law played in her appointments with the psychologists and in relation to her father’s health.

4. The letter from the clinical psychologist confirms the oral evidence at hearing that following the review applicant’s initial assessment in July of this year, the psychologist then had a period of leave and there were significant waiting times for appointments with her.

5. The Tribunal notes the discharge summaries provided in relation to the review applicant’s sons, Ibrahim and Adam. Ibrahim was admitted to hospital on 8 August 2022 and discharged on the same day, Adam was also admitted to hospital for one day on 21 June 2022. The Tribunal also notes the health summary sheet in relation to the review applicant’s father indicating that he has been diagnosed with hypertension, type II diabetes and microalbuminuria.

Findings

1. The Tribunal accepts the evidence that the visa applicant and the review applicant have been in a spousal relationship for over six years, which is a long-standing relationship.  The Tribunal accepts that the couple have a biological child and that the review applicant’s children have developed a strong bond with the visa applicant. The evidence before the Tribunal which the Tribunal accepts is that the couple provide each other with mutual emotional support and the sponsor, despite the fact that she has limited finances, supports the visa applicant financially.

2. No evidence was provided that the child is dependent financially on the visa applicant. The review applicant provided evidence that she receives Family assistance from Centrelink for the care of her four children at a fortnightly rate of $1,162.42 and that she transfers funds to the sponsor from time to time.

3. The Tribunal also accepts that the sponsor has major depression – as evidenced by Ms Touma’s report. The Tribunal accepts that the review applicant’s family have supported her in a variety of ways and continue to do so but the level of support has been reduced. In any event the Tribunal accepts the difficulties she faces caring for her four children.

4. Of significance is the fact that the parties have a 5-year-old Australian citizen child, and the Tribunal must consider her best interests. It is difficult to see how refusing the visa is in the child’s best interest. Refusing the applicant’s visa would potentially mean significant continued hardship to the sponsor as well as their daughter, who has already been deprived of having regular contact with her father in Australia throughout her life, except for the visits to Pakistan. The Tribunal also accepts the evidence that the review applicant’s sons have formed a strong bond with the visa applicant.  On the evidence, the Tribunal is satisfied that it is in the best interest of the children for the visa not to be refused.

5. The Tribunal is satisfied that the concerns expressed at hearing in the conflicting evidence put to the review applicant had been explained sufficiently.

6. In consideration of the evidence as a whole, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitations in reg 1.20J should not apply.  The Tribunal is therefore satisfied that the applicant meets the requirements of reg 1.20J for the purpose of cl.309.222 and that the sponsorship should be approved

7. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

decision

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.222 of Schedule 2 to the Regulations

Linda Holub
Member