1505824 (Migration)

[2015] AATA 3921

1505824 (Migration) [2015] AATA 3921 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Maxwell Pedzisah

VISA APPLICANTS:  Mr Tawanda  Tatyenyika Pedzisah
Mrs Macdeline Pedzisah

CASE NUMBER:  1505824

DIBP REFERENCE(S):  BCC2015/585103

MEMBER:Tony Caravella

DATE:15 December 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 15 December 2015 at 3:35pm

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 19 March 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 23 February 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visas in this case, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied on the evidence before him at the time of his decision, that the applicants had a genuine intention to only visit Australia.  The delegate also found, “there is a likelihood of the applicant working, overstaying, seeking to remain in Australia or applying for another temporary visa after their arrival in Australia.”

5. The review applicant appeared before the Tribunal on 7 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants who gave sworn oral evidence by telephone from Zimbabwe.

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

7. At the hearing, the review applicant gave sworn oral evidence.  He said he understood the reason for the refusal of the visitor visas was due to the delegate’s assessment of the economic factors and other circumstances in Zimbabwe and that because of this the delegate considered the applicants would not leave after visiting Australia.

8. The review applicant told the Tribunal that the applicants both live in Bulawayo, Zimbabwe.

9. The review applicant said he feels he has a right as an Australian citizen to sponsor his siblings to visit him in Australia.  He said he has completed a degree in Australia.  He also said that he has not hitherto sponsored anyone to visit him from overseas.

10. The review applicant said that his wife recently sponsored her mother to visit her for six months.  He said his wife’s mother travelled to Australia last year and stayed for six months, and then left and returned to Zimbabwe.

11. The review applicant told the Tribunal that both visa applicants have their work and lives in Zimbabwe.  He said he hopes that the visas will be granted for six months because he wants the visa applicants to see Western Australia and also to tour the eastern states of Australia with them when he is not working. 

12. The review applicant told the Tribunal that he is a registered nurse in Australia. He told the Tribunal he completed his studies in 2012 when he graduated with a Bachelor of Science in Nursing.

13. The review applicant told the Tribunal that one of the visa applicants is his sister and that she is a housewife in Zimbabwe.  He said that her husband passed away a few years ago.  He said his sister has two children; one is in year three, and one is in year one, at school.  He said her husband died in a car accident.  He said his sister has a large support network in Zimbabwe and that she is leaving her children there if she is permitted to enter Australia as a visitor.  He said the children will be looked after by the support network they have.  He said his sister works part-time for a non-government organisation in Zimbabwe and that organisation is involved in providing care for the aged.  He said she also has some money that was left to her by her husband. 

14. The review applicant told the Tribunal that the other visa applicant is his brother, Tawanda, and that he is a student and he proposes to defer his studies if he is permitted to come to Australia to visit.

15. The review applicant said that the visa applicants’ only relatives in Australia are the review applicant, his wife, and their two nieces, whereas they have their mother and father and an older sister in Zimbabwe.

16. The review applicant submitted that immigration officers should not generalise and that they have to look at the detail of each particular case.  He said that he has clearly explained to his brother and sister who seek the visas to visit Australia, that they must set the standard for others in complying with all visa conditions that might be imposed if the visa is granted.  He said he spoke to his brother by telephone the night before the hearing.

17. The review applicant said that his brother and sister have previously travelled outside of Zimbabwe.  He said they travelled to Mozambique, Botswana, and South Africa in the past.

18. The review applicant said that neither his brother or sister have had any trouble with the law in Zimbabwe.

19. The review applicant said that his brother Tawanda had been in a relationship and has a child in Zimbabwe.  He said the child lives with the biological mother, and that Tawanda has paid a bride price.

20. The Tribunal spoke to Tawanda Pedzisha (“Tawanda”) by telephone from Zimbabwe.  He told the Tribunal that his intention to visit Australia temporarily is genuine.  He said he is currently studying water engineering at the Bulawayo Polytechnic.  He said he will complete the course in 2019.  He said he wants to work in construction engineering and there is a good chance of getting work in that area in Zimbabwe.  He said he is a full-time student and his mother pays his fees.  He said that presently he does not work, but in the past had worked in insurance on a part-time basis.

21. The Tribunal asked Tawanda if he is presently in a relationship.  He said that he is but he does not have any children.  He said the person with whom he is in a relationship is called Fadzi.  He said he has been in that relationship for seven years although they do not live together because they are not married.

22. When asked how long he would like to come to Australia for, he said he would like to visit for about two months.  He said he has his studies back in Zimbabwe, as well as his house and his relationship with Fadzi.

23. Tawanda told the Tribunal that he is comfortable in Zimbabwe and the political and civil unrest has not affected him.  He said he is not involved in any political activities.

24. He said his long-term plans are to get a job to start a family.  He said he has had no trouble with the law.  He said if he did not return to Zimbabwe he would miss his family and his friends and would miss where he has lived all his life.

25. Tawanda told the Tribunal that he has travelled to South Africa, Botswana, and Mozambique.  He said because they travelled there for a short time they did not need a visa.  He said if Australia grants a visitor visa to him, he will only visit and then return to Zimbabwe.  He said he will not work in Australia and nor would he undertake any course of study in Australia.  He said he will bring his own money to spend here, and his sponsor/brother will also support him.

26. The Tribunal also spoke via telephone to the second visa applicant, Macdeline Pedzisah.  She confirmed the year of birth as being in 1981.  She gave sworn oral evidence that she wants to visit her brother in Australia. 

27. Macdeline said she is working for the Population Service Department as an administrative assistant and she has been there for three years.  She said the work she does there is part-time.  She said she can ask for unpaid leave for up to six months for the purpose of travel.

28. Macdeline said she has two children, Enius aged 10, and Tanaka aged 8.  She told the Tribunal that she cannot stay in Australia too long because of her children.  She repeated she just wants to visit her brother and his family and that she can only come for 3 months.  She said that six months is probably too long.

29. Macdeline told the Tribunal that she accepts that she is not permitted to work or study in Australia during her visit.  She also told the Tribunal that she has travelled to Botswana, South Africa, Namibia, and Zambia previously.

30. Macdeline told the Tribunal that she lives in a house in Bulawayo with is some 90 km from Botswana.  She said her family is isolated from the influences of Harare.  She also told the Tribunal that if she is allowed to visit Australia she will make sure she leaves a good record so that her brother can sponsor other visitors in the future. 

31. Macdeline told the Tribunal that she is of the Shona people which represents about 30% of the population in the area.

32. The review applicant commented on the evidence of the two visa applicants.  He said they did not know what the Tribunal would ask them.  In respect of Tawanda’s response where he said he did not have a child, he suggested he might have been confused by the Tribunal’s question.

33. The review applicant said the visa applicants are just normal people who want to visit him and Australia and then return to their country.

34. The review applicant said he had never been in trouble with the law and that his brother and sister have similar character and similar values to his own.  He said he has never used government money and has supported himself through work while in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

36. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

37. In the present case, the visa applicants seek the visas for the purposes of visiting their sibling in Australia, as well to visit and tour Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

38. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). There is no evidence that the applicants have previously held an Australian visa.  They are therefore unable to demonstrate that they have complied substantially with the conditions of a substantive, or a bridging visa held in respect of Australia. 

39. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

40. The Tribunal accepts the sworn oral evidence which indicates that the first named applicant will defer his studies to travel to Australia, and that the second named applicant holds a part time job in Zimbabwe and has done so for approximately 3 years.  The Tribunal accepts their sworn undertakings, as it also accepts the review applicant’s sworn evidence, that the visa applicants accept that they must not work in Australia, and accept they must not engage in training or study for more than 3 months in Australia.  The Tribunal is satisfied that based on the evidence before it the applicants do intend to comply with conditions 8101 and 8201.  Having regard to the sworn oral evidence of the visa applicants, and to the sworn oral evidence of the review applicant where he declared that he had clearly explained to the visa applicants that they must set the standard for others in complying with all visa conditions, the Tribunal is satisfied that the visa applicants do intend to comply with conditions 8503 and 8531.

41. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal had regard to the Department’s policy guidance as set out in its Procedures and Advice Manual (PAM3) which relevantly states:

    The ‘any other matter’ factor
    Some relevant considerations
    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    •Personal circumstances
    •Credibility
    •Purpose and period of stay
    •Previous immigration/travel history
    •Intel reports and profile.

    Personal circumstances
    Namely:

    •the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
    •ongoing employment
    •the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
    •property, or other significant assets, owned in their home country and
    •whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance

    and

    •the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
    •economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
    •economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
    •the applicant’s personal ties to Australia, that is:
    •does the applicant have more close family members living in Australia than in their home country
    •is the applicant subject of adoption proceedings that have not been resolved in their home country
    •military service commitments
    •civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.
    Credibility

    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
    Purpose and period of stay
    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

    Previous immigration/travel history
    Previous immigration and travel history, such as:

    •previous visa applications for Australia
    •previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.
    Intel reports and profiles

    Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country.
    Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:

    •staying in Australia beyond the stay period of their visa or
    •having their visa cancelled or
    •being refused entry to Australia or
    •making asylum claims or applying for a protection visa.

    Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.

42. The Tribunal accepts the evidence before it that the visa applicant’s live in Bulawayo, Zimbabwe.  It accepts that as a result of this, and that on the basis that the applicants are not involved in political activities, that they are not the target of serious harm or persecution for reasons of their political opinion in Zimbabwe.  The Tribunal accepts the applicant’s contention that they do not face a disincentive against returning to Zimbabwe on the basis of any fear of persecution. 

43. The Tribunal accepts the review applicant’s submission where he argued that he has a right as an Australian citizen to sponsor his siblings to visit him in Australia.  It accepts his submission where he claimed that he has not hitherto sponsored anyone to visit him from overseas.  While the Tribunal may accept the review applicant’s view on the right to sponsor, and while it may accept that he has not hitherto sponsored anyone to visit him from overseas before, that is not sufficient to determine this review.  What is necessary is for the Tribunal to be satisfied, based on all of the evidence before it, that the applicants satisfy the prescribed regulations, including the regulation which prescribes that the Tribunal must be satisfied that the applicants have a genuine intention to stay temporarily in Australia. 

44. The Tribunal is prepared to accept the review applicant’s evidence where he said that his wife recently sponsored her mother to visit her for six months, and that his wife’s mother travelled to Australia, stayed for six months, and then left and returned to Zimbabwe.  The Tribunal considers this is relevant evidence and indicates that the applicant’s family has some history of compliance with Australian visa conditions.  However, the Tribunal does not find this to be determinative of the issue in question.  Rather, it must be satisfied that the particular applicants have the requisite genuine intention to only visit Australia temporarily.

45. The Tribunal considered the evidence from the review applicant, and from the applicants themselves, which indicates that the visa applicants have their work and lives in Zimbabwe.  It finds that in the case of the first named applicant he has a partner there, and in the case of the second named applicant that she will be leaving her children there  if she is granted a visa to enter Australia.  The Tribunal also finds they both have more family and relatives in Zimbabwe, including their mother and father, than they do in Australia. 

1. The Tribunal notes the review applicant expressed a preference that the visas be granted to the visa applicants for six months because he wants the visa applicants to see Western Australia and also to tour the eastern states of Australia with them when he is not working.  The Tribunal notes that the evidence of the visa applicants themselves indicates they only seek to stay in Australia for a period of less than 2 or 3 months.  Having regard to all the evidence, the Tribunal accepts that the stated purpose for the visit, that is, for the purposes of family reunion and travel or sightseeing, the purpose of the applicants’ desire to enter Australia is consistent with the purpose for which the visa would be granted.    

2. The Tribunal considered the circumstances of the second named visa applicant, that is the review applicant’s sister.  It accepts the evidence that indicates she is a widow having lost her husband in a car accident.  It accepts the evidence that she has two children who will remain in Zimbabwe and who will be left in the care of her support network in Zimbabwe.  The Tribunal considers the fact that she will leave her two children in Zimbabwe will act as a significant incentive for her to return to that country after visiting Australia.  It also accepts the evidence which indicates that she holds a part-time position for a non-government organisation in Zimbabwe and that organisation is involved in providing care for the aged. It finds this will also act as a further incentive for the second named applicant to return to Zimbabwe. 

3. In respect of the first named applicant, the Tribunal accepts his evidence where he proposes to defer his studies to enable him to travel to Australia.  It considers his desire to complete his studies acts as some incentive for him to return to Zimbabwe, although not necessarily a significant incentive in the circumstances of this case.    

4. The Tribunal considered the review applicant’s evidence where he argued that each particular case must be assessed on its merits.  The Tribunal accepts that principle.  It also places weight on the review applicant’s evidence where he claimed to have clearly explained to the visa applicants that he expects that they must set the standard for others in complying with all visa conditions that might be imposed if the visa is granted. 

5. Although of course not determinative of itself, the Tribunal considers the evidence that the visa applicants have previously travelled outside of Zimbabwe, and in particular have travelled to Mozambique, Botswana, and South Africa in the past, is relevant and indicates they appear to have complied with visa conditions applicable in other countries.

6. The Tribunal considered the country information available to it indicating the economic challenges and the political unrest in Zimbabwe and considered whether these might be a persuasive reason for the applicants not to depart Australia after the period of the visa which they seek.  It accepts the evidence which is that the applicants are not involved in any political activities and that they have not been the target of political or other trouble in Zimbabwe.  The Tribunal accepts the applicants’ evidence that they live in Bulawayo and that as such they are isolated from the influences of Harare.  It accepts that on balance, the economic, social and political circumstances in Zimbabwe, which might otherwise be regarded as adverse, do not act as a significant disincentive to the applicant’s genuine intention to only visit Australia temporarily.      

7. Having carefully considered all of the evidence before it, the Tribunal finds it is satisfied that the visa applicants genuinely intend to stay temporarily in Australia. 

8. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

   DECISION

9. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl.600.211 of Schedule 2 to the Regulations.

   Tony Caravella
   Member