TSVANHU (Migration)

[2022] AATA 2027

TSVANHU (Migration) [2022] AATA 2027 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms EDERINA TSVANHU

VISA APPLICANT:  Master Anesuishe Sean Makuna

CASE NUMBER:  1931452

HOME AFFAIRS REFERENCE(S):          BCC2018/5012642

MEMBER:Peter Emmerton

DATE:31 March 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·cl 309.311. of Schedule 2 to the Regulations

Statement made on 31 March 2022 at 12:40pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – secondary applicant grandson under custody and guardianship of primary applicant grandfather – mother deceased – court orders from home country provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulation 1994 (Cth), Schedule 2, cl 309.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 12 November 2018. The delegate refused to grant the visa on 30 August 2019.

2. The delegate made the decision on the basis that inadequate evidence was provided to show that the applicant Anesuishe Sean Makuna, born [Date 1], is the grandchild and under the custody and guardianship of the primary applicant Mr John Makuna, born [Date 2] and his wife and sponsor, Ms Ederina Tsvanhu. The visa applicant’s mother is listed as Ms Melody Tatenda Makuna, DOB [Date 3] - Deceased. The Delegate in their decision dated 30 August 2019, stated the following was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations) as the reason.

   ‘It is submitted in the application form that Anesuishe Sean MAKUNA born [Date 1] is the grandchild of the primary applicant. A guardianship order has been provided, I have placed limited weight on the guardianship order because it does not confer custody or parental rights on the primary applicant. I find that the primary applicant does not have the rights to remove Mr Aneishe Sean MAKUNA from his country of residence and cannot determine where the child can reside.’  

3. On 24 January 2022 the Tribunal received a copy of Decision made by the High Court of Zimbabwe, Harare, made by the Honourable Mrs Justice Chirawu-Mugomba, dated 15 October 2021. The orders were stated as follows.

   IT IS ORDERED THAT

   I.   The applicant, John Makuna [National identity number 1] is declared the sole custodian and primary care giver of Anesuishe Sean Makuna [National identity number 2] born on [Date 1].

   2.   The rights of custody include the right to take the minor child out of the jurisdiction of Zimbabwe and settle with him whenever applicant will be residing.

   3.   There shal1I be no order as to costs.

4. The Tribunal has researched the document and the standing of the Judge and is satisfied that the document is genuine and has appropriate legal standing. The Tribunal has also researched the identification of the parties. This included reference to Passports, Identification numbers, the Death Certificate of the applicant’s mother and has determined they are genuine, accurate and demonstrate a clear and appropriate link between the visa applicant and his Guardian.

5. It is clear to the Tribunal that Mr John Makuna is the sole custodian and primary care giver for the visa applicant, Master Anesuishe Sean Makuna. It is also indisputable that the rights of custody include the right to take the minor child out of the jurisdiction of Zimbabwe and settle with him whenever applicant will be residing.

6. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

   ·cl 309.311. of Schedule 2 to the Regulations

   Peter Emmerton
   Member