Sibanda (Migration)

[2022] AATA 5282

Sibanda (Migration) [2022] AATA 5282 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Silothando Pamelar Sibanda

VISA APPLICANT:  Mr Gerald Ncube

REPRESENTATIVE:  Mr Karl Konrad (MARN: 9904238)

CASE NUMBER:  2318507

DIBP REFERENCE(S):  BCC2023/4069286

MEMBER:Moira Brophy

DATE:18 March 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 March 2024 at 4:28pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – whether sponsorship requirements had been met – best interests of their son – satisfied there are compelling and compassionate reasons affecting the sponsor – the sponsorship should be approved – no criminal history – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 309.213, 309.222

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 Home Affairs on 9 October 2023 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 17 July 2023 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 applicant was not sponsored by a person who could meet the sponsorship regulations as set out in reg 1.20J(1) and the delegate found there were no compelling or compassionate reasons to warrant a waiver of the sponsorship limitations.

4. The review applicant appeared before the Tribunal by way of a video link on 18 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Gerard Ncube.

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

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

   Background

7. The applicant was born in South Africa in 1976. He was previously in a defacto relationship with Sibusisive Getrude Maphosa in the period from 15 April 2004 to 31 December 2019. There were two daughters of the relationship born in 2005 and 2008. His mother is deceased, hand he has one sister who resides In South Africa.

8. The sponsor was born in Zimbawee, she came to Australia as a student (subclass 500) on 16 January 2018.  She was previously in a defacto relationship with Wonder Nyoni in the period from 1 March 2019 to 25 September 2021. The sponsor was sponsored to Australia on a Partner visas. Her application for a visa (Subclass 820 (Partner) was made on 6 March 2020 and was granted on 12 December 2020. She was granted a Subclass 801 visa on 22 November 2022. Her parents and one brother reside in Zimbawee and she has one brother living in Australia.

9. At the time of application, the parties stated they met virtually on 22 November 2021 over a video call. The parties committed to each other to the exclusion of all others on 12 December 2021 and they met in person at Johannesburg on 7 February 2022. They married in Germiston, South Africa on 16 February 2022. Their son Eyden Ndalwenhle Ncube was born on 1 November 2023.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether reg 1.20J applies to limit sponsorship, and if so whether it can be waived.

    Are the sponsorship requirements met?

11. 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 reg 1.03 of the Regulations).

12. 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.

13. Approval of sponsorship is subject to limitations contained in reg 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 reg 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 reg 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 reg 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.

14. At the time the application was lodged on 15 December 2016, Departmental records indicated that the sponsor had previously been granted a Combined Partner (UK 820/BS 801) on the basis of being the spouse, de facto partner or prospective spouse of another person. This application was lodged on 6 March 2020. Since five years had not passed since the sponsor’s own application for a Combined Partner visa the limitation on approval of sponsorships in paragraph 1.20J(1)( c) applied.  The delegate found that, reg 1.20J(1)(c) was not met. The applicant was invited to provide information as to the compelling reasons that should be considered to have the sponsorship limitation waived and submitted information in response.

15. The delegate was not satisfied that compelling circumstances to warrant the waiver provision at reg 1.20J(2) had been established and refused the application on the basis that cl 820.221(4) was not met.

16. In considering the application, the Tribunal was mindful reg 1.20J(2) provides that the decision-maker may approve the sponsorship, despite the limitation, if satisfied that there are ‘compelling circumstances affecting the sponsor’. The legislative intention of this provision can be found in the Explanatory Statement which accompanied the introduction of reg 1.20J. It indicates that ‘compelling circumstances’ affecting the sponsor includes: 

    • the previous spouse or de facto partner has died;
    • the previous spouse or de facto partner has abandoned the sponsor and there are children requiring care and support;
    • the new relationship is long-standing; or
    • there are dependent children of the new relationship.

17. In submissions provided prior to hearing and in their oral evidence, the applicant and sponsor spoke of their concerns if the limitations were not waived.

18. As to whether there were compelling and compassionate circumstances, the review applicant told the Tribunal she was currently living in Orange with her infant son. Her mother was visiting her but her visa would shortly expire and she would have to return to Zimbawee. She is paying rent of $360 per week and she does not qualify for Centrelink benefits as she has not held a permanent visa for the requisite two year period. The applicant is not able to send her more than $200 per month as he has two children in South Africa whose needs he has to meet. Given this situation and despite having a newborn the sponsor has to meet her and her son’s rental and other living costs she has to continue to work two to three shifts a week. She is at an aged care facility in Carcoar which is a 30 minute drive from Orange. She has yet to explore child care options available for her son when her mother returns to Zimbawee.

19. The sponsor spoke of her need to have the applicant in Australia and the need for him to be with their child. The sponsor said she has had a challenging time with their son as he is a demanding baby and she is constantly anxious, stressed and very tired. She worries about her responsibilities to her aged care patients and her tiredness in having to drive 30 minutes each way to work. She has no support networks in Orange apart from one friend whose partner recently died so she is not in a position to offer support at present. She is emotionally dependent on the applicant and she feels very vulnerable having to be a new parent on her own. She is concerned the applicant is not able to bond with his son. The applicant considered the sponsor and their son relied on him emotionally and he needed to be physically with them in Australia. The sponsor spoke of the effects the visa rejection had on both their mental health. He did not see how he could continue to meet the emotional needs of their family if they were to be separated indefinitely.

20. The Tribunal was mindful Australia is a signatory to the UN Convention on the Rights of the Child 1989 (CROC) and the International Convention on Civil and Political Rights 1996 (ICCPR), both of which protect the rights of children and families.

21. Articles 3 and 9 of CROC state:

    3. In all actions concerning children … the best interests of the child shall be a primary consideration.

    . . .

    9. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. . .

22. Article 23 of the ICCPR states:

    The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

23. Consistently with these international obligations, PAM3 sets out that in a situation where there are children in Australia whose interests could be affected by the decision, the best interests of the children are to be treated as a primary consideration.

24. The Tribunal is satisfied it is in the best interests of their son that the applicant be able to come to Australia and support the sponsor and their child. Any separation from either of his parents would not be in his best interests.

25. The Tribunal was also concerned as to the mental health of the sponsor and the effect on her of her being alone without support with a newborn child.  As a single parent she was unable to access the time required to find the support systems she needed to put in place to sustain her. She had only recently come out of an abusive relationship and was still very emotionally fragile.

26. Both singularly and cumulatively, the Tribunal is satisfied there are compelling and compassionate reasons affecting the sponsor that lead to the Tribunal finding the sponsorship should be approved.

    Overall assessment

27. On the evidence before the Tribunal, the requirements of cl 309.222 are  met.

28. 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

29. 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

    Moira Brophy
    Member