1510455 (Migration)

[2016] AATA 3276

1510455 (Migration) [2016] AATA 3276 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms ETHEL MISODZI GARA

VISA APPLICANT:  Mr CRISPEN MBURUMA

CASE NUMBER:  1510455

DIBP REFERENCE(S):  FA-600

MEMBER:Christian Carney

DATE:12 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 February 2016 at 12:53pm

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 7 July 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 May 2015.  At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he had provided insufficient evidence to demonstrate that there were incentives for him to return to Zimbabwe.

4. The review applicant appeared before the Tribunal on 22 December 2015 to give evidence and present arguments.  The Tribunal also received oral evidence by telephone from the visa applicant in Zimbabwe. 

   Issue for determination

5. 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 he has complied substantially with the conditions attached to the last substantive visa he held; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Information about the visa applicant

6. The visa applicant is a 34 year old male from Chegutu in central northern Zimbabwe.  In the visa application he said he was married and had a daughter born in late 2012.  He has previously travelled to South Africa on two occasions, in 2010 for three months, and 2011 for one month.  His listed his employment as a ‘small scale farmer’ and that he was a part-owner and had done that work for six years. 

7. He said he wanted to visit Australia to see his sister, the review applicant, and attend her wedding on 15 August 2015.  He said that she would cover the costs of his travel and accommodation and related expenses in Australia. 

8. He provided a copy of his passport and a letter from the review applicant confirming the invitation to her wedding in August 2015 and that she and her fiancé will cover all of his travel expenses and costs. 

   Evidence to the Tribunal

9. By letter dated 30 July 2015 the review applicant provided the following information to the Tribunal:

   (a)Confirmation that she wanted her brother and twin sister to attend her wedding in August 2015.  She lost both her parents and her siblings are her only family. 

   (b)Numerous documents confirming the wedding on 15 August 2015. 

   (c)Documents confirming her employment as a Nurse at Wollongong Hospital for which her annual income is approximately $105,000. 

   (d)Documents confirming her fiancé’s employment as a Nurse at Wollongong Hospital for which her annual income is approximately $133,000. 

   (e)Bank account statements indicating a balance of $8,300 at 30 July 2015

10. The review applicant and her husband appeared before the Tribunal on 22 December 2015 and gave the following evidence at a hearing:

    a.They were married on 15 August 2015.  Had they not paid the MRT application fees, they would not have proceeded with the application.  They hope that her brother Crispin and twin sister can still come. 

    b.She came to Australia in 2005 on a working visa to work as a nurse.  She was a single parent with three children.  He eldest son is now 24. 

    c.She confirmed her employment and family relationships. 

    d.She last went to Zimbabwe in December 2014.  Her husband is also from Zimbabwe. 

    e.She said that Crispin had worked on their family farm since he finished school.  They grew wheat and have livestock on the farm.  Crispin supervises the workers they employ on the farm.

    f.Crispin had also been an apprentice at a plastics factory. 

    g.Crispin is separated from his wife and daughter.  They live about an hour away from him. 

11. Her husband confirmed his details and that he is also from Zimbabwe and is now an Australian citizen.  He has never sponsored family or anyone else to come to Australia. 

12. When the Tribunal noted that the visa applicant had not provided any documents to support his personal situation or ties to Zimbabwe, she said that she did not think there were any documents he could provide.  She just wanted to him to come to the wedding.  Her older brother could not come and after her father died she wanted Crispin to come so there would be a man from her family at the wedding.  She said that it is OK if he does not come.  But if he comes she will make sure he goes back.  He will stay with them if he comes.  Crispin is not involved in any political group, including the MDC, and has never had any troubles or problems in Zimbabwe.  He is a born again Christian.  Their family has had no connections or association with any political group.  They are a regular and normal family.  She said it would be good for her children to see their uncle. 

13. The visa applicant provided the following evidence over the telephone:

    (a)He confirmed the details of his identity.  He lives alone in an apartment in Chegutu.  He rents the apartment. 

    (b)He is working part time as a machine printer in Chegutu.  When asked who he works for, he said he is currently unemployed.  He last worked on 17 December 2015.  He was at that place for three months.  Before that he was unemployed for a long time.    

    (c)He confirmed he is separated from his wife and daughter.  They also live in Chegutu.

    (d)Despite missing the wedding in August 2015, he still wants to come to Australia for a holiday.  He would come for three months.  He will do site-seeing and visit his family here. 

    (e)He understands if he overstays the visa or works in Australia his sister could lose money she would have to put up as a bond.  He will leave before the end of the visa. 

    (f)He is not involved in any political group, including the MDC, and has never had any troubles or problems in Zimbabwe. 

    (g)When asked if he would be able to provide any documents to support his circumstances, he said it is difficult to obtain documents and he is not able to provide any. 

    (h)When the Tribunal noted that information indicated that the economic and general conditions in Zimbabwe were poor, and that with his current lack of employment, it might be thought that he had a strong incentive to stay in Australia beyond the term of a Visitor and work, he said he would not do that and he would leave before it expired. 

14. Following the visa applicant’s evidence, the Tribunal asked the review applicant to comment on the visa applicant’s evidence about his employment and current situation.  She said that she is not really sure about his situation.  He is looking for work.  The Tribunal noted that his evidence was inconsistent with the evidence she had given about his work on the farm.  She said he did that work before but maybe he does not want to be associated with the farm anymore because it is a difficult life. 

    Consideration and assessment

15. On the evidence before it, the Tribunal accepts that the visa applicant and review applicant are siblings.  The visa applicant seeks the visa for the purposes of visiting his sister and her family, which is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.221.

16. 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)).  In the present case, the visa applicant has not travelled before to Australia, but the evidence indicates he has travelled to South Africa on two occasions; however, there is no evidence to indicate whether or not he complied with the conditions of any entry permit he held. 

17. The Tribunal must 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 which a visa in the circumstances of this case would be subject include (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.

18. The evidence before the Tribunal indicates that the visa applicant is a single male who is separated from his wife and young daughter and is currently employed.  There is conflicting evidence before the Tribunal about his circumstances and past work history, which gives the Tribunal some concerns about the reliability of his evidence and the degree of confidence it can have in being satisfied that he would comply with the conditions of the visa.  As noted above, the review applicant’s evidence indicated he was employed on the family farm in a supervisory role and had experience in other fields; however, the visa applicant’s clear evidence was that he was unemployed and, apart from a recent brief period of employment, had been unemployed for some time, and he made no reference to having worked on a family farm.  Further, he gave no suggestion that he is close to his daughter or that he has any real relationship or contact with her since his separation from his ex-wife. 

19. As discussed with the applicants at the hearing, available independent information indicates that Zimbabwe’s economic and financial conditions are very poor and it has significantly high rates of unemployment and continuing political instability, which together, create a powerful disincentive for a single unemployed man in his mid-30s to return from a country such as Australia.  While in itself those disincentives are not enough to cause the Tribunal to be not satisfied that he would comply with the conditions of the visa, in circumstances where it has concerns about the reliability of his evidence and where there is no independent evidence to confirm his ties to Zimbabwe in any way or form, the Tribunal is unable to have confidence in accepting he would comply with the conditions that would be attached to the visa.  Indeed, the fact the applicants gave inconsistent evidence about his situation causes the Tribunal to have concerns about the motives and intentions for his desire to enter Australia.

20. For these reasons, on the evidence before it, the Tribunal cannot be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the Visitor visa is granted, even if the Department were to impose a bond security, which the Tribunal notes was not offered by the review applicant.  Having considered all of the evidence in this case, the Tribunal is not satisfied the visa applicant would not seek to remain in Australia after the end of a permitted stay. 

21. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Christian Carney
    Member