1516883 (Migration)

[2016] AATA 4070

1516883 (Migration) [2016] AATA 4070 (1 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ignatious Chitsike

VISA APPLICANT:  Ms Marvelous Garawadya

CASE NUMBER:  1516883

DIBP REFERENCE(S):  BCC2014/2984919

MEMBER:Michelle Grau

DATE:1 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations

Statement made on 01 July 2016 at 8:28am

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 16 October 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 31 August 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 Tourist 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 visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the applicant intended a genuine visit temporarily.

5. The review applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband and his family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)). The applicant has not previously held a visa and therefore this paragraph is not applicable.

10. 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.600.611(2)):

    ·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.

11. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

12. According the visa application, the visa applicant is a 23 year old female from Mutare, Zimbabwe who wants to visit her husband for 12 months. Her parents and three brothers living in Zimbabwe and are not travelling with her. Bank statements from the review applicant and his mother were provided. The review applicant’s mother also wrote a letter of support for the visa applicant to visit their family as they are newly married and the review applicant has aunts, cousins, siblings, friends and parents in Australia.

13. At review a letter of support from Unifresh stated they would be supporting the visa applicant’s visit by providing financial assistance for her ticket, travel insurance and $800 a month. The letter stated it was a family business and they were obliged to assist before she decides to either apply for settlement in Australia or return to Zimbabwe.

14. The tribunal found the applicant’s evidence at hearing was hesitant and vague. For instance, the applicant was unsure of what kind of visa his family came to Australia and thought it was a refugee visa. However, movement records indicate that the applicant’s family arrived in Australia on 457 work visas and obtained permanent employer sponsored visas in 2012.  Also his evidence changed about whether his parents visited Zimbabwe for the engagement in 2013. The tribunal spent some time clarifying his evidence. Initially he said his parents did not go to Zimbabwe in 2013, but went in 2009 and met the visa applicant and her family. He later changed it to the family met the visa applicant in 2013 where everyone met and they had an engagement.

15. The tribunal asked for photos of engagement celebration. He said he did not have them on his phone as he had dropped it, but had some at home and on his parent’s computer. The tribunal noted it was important to provide evidence of the relationship such as photos of the engagement and wedding celebration showing the family’s attendance. 

16. The applicant earns $500 a week as a chef and rents a flat. His parents both work and his younger brother lives at home. He said he studied  cooking at QUT when he came to Australia. The tribunal expressed doubt that he studied cooking at QUT. He said it was at TAFE and liked working with his hands. His only qualification was high school.

17. The applicant came to Australia in 2008 and said he was in a relationship with the visa applicant for three years. They met in Zimbabwe as friends at school. He returned to Zimbabwe in 2009, 2013 and 2015. He introduced the visa applicant by Facebook to his parents first. While the review applicant’s evidence about when his family physically met the visa applicant changed from 2009 to 2013, the tribunal accepts that he was confused about  the times he travelled to Zimbabwe and when his parents also went. However he was clear that his parents were at the engagement in 2013 as they celebrated together. They were engaged in 2013 and married in 2015.

18. The tribunal expressed concern that there was not much evidence that the visa applicant had strong ties to Zimbabwe. The review applicant said if she likes it she would go back to Zimbabwe and apply for the partner visa. The tribunal expressed concerns that she would visit for a year, particularly as she would have to leave a job and lease.

19. He said they planned to live in Australia but the tribunal noted that her application was to see if she wanted to live in Australia. They have not applied for a partner visa as his parents suggested the visa applicant come for a visit first to see if she likes it.

20. The tribunal attempted to telephone the visa applicant a number of times on two different numbers at hearing but was unable to reach the visa applicant. As a result the tribunal stressed it was important that the review applicant provide documentary evidence requested to corroborate his claims as none had been provided.

21. The review applicant’s evidence about the visa applicant was that she works in the family business with her parents and brother in Harare. The visa applicant finished high school and did cooking after school, which was a diploma. The tribunal noted the application suggested the visa applicant did a diploma in office administration in 2014. The tribunal noted it may have concerns about the documentation provided. The applicant appeared confused and said she always did cooking. He said she was studying cooking full time from 2007 – 2014 and working part time in the family business.

22. The applicant bought a car last year for her. He sent her $3000 to pay for the car.

23. She has moved out of her family home a month ago so they could have their own place. It is a two bedroom apartment, the owner and his wife, garden boy and cook and she pays 380 rand a month. She earns $800 a month from the family business. They opened a Zimbabwe joint account in 2013 in which her salary goes into, but he does not put money into that account. He showed the tribunal the Barclays card he could use in Zimbabwe, which was the same bank account as the visa applicant. The applicant has his own Australian account where his salary is paid weekly. The tribunal expressed doubt that there was any salary payments paid into his account in July 2014.

24. He said he could get copies of her bank statement, lease, and photos. The review applicant said the visa applicant travelled to South Africa in 2013 to buy clothes for 2 weeks. She went to Zambia in 2015 and to Botswana. The tribunal asked the applicant to provide a copy of visa applicant’s current and old passport to see her travel records.

25. In Zimbabwe, she has three brothers, two of whom are younger than she is and they all live at home with the parents.

26. Given the lack of documentary evidence and not being able to speak with the visa applicant at hearing the tribunal asked the applicant to provide the visa applicant’s skill certificates, her current and old passport showing travel history, a statement from the visa applicant about study, current circumstances about income, study, incentive to return, Facebook screen shots of contact between each other, photos of engagement and wedding showing family and friends.

    Post hearing

27. On 14 April 2016, the applicant provided the marriage certificate, wedding and other photos, a letter from the visa applicant, her lease, work statement, a number of qualifications, copy of passport pages and the review applicant’s bank statement.

28. According to the visa applicant she is employed by UnifreshTrading as a an administrator for the last four years; she wanted to visit Australia to spend her leave days with her husband and it was an opportunity to build their relationship as they had not stayed with each other since they got married. She is committed to the family business and not yet prepared to abandon it and visiting Australia will be a great experience. She wants to know and understand where her husband lives, works and know his friends in Australia other than to leave in e imaginary assumptions. It will also be a chance for them to stay as family and build a bond between husband and wife. Their relationship developed in 2008 when she was at school, their engagement was held on 15 December 2013, her lobola was paid on 24 May 2014 and they married on 4 October 2014.

29. While the tribunal had some concerns at the outset of hearing given the lack of documentation provided, the tribunal having heard from the review applicant and received further documentary evidence is satisfied the visa applicant intends a genuine visit and to comply with visa conditions.

30. While the tribunal had some difficulty with the review applicant’s evidence at hearing at first, it is of the view this was due to his age, lack of education and experience in visa applications and understanding of the kind of evidence required.  Once the tribunal reframed questions in simpler, closed ended questions and further explained the issues, the applicant’s evidence was clearer. Further it was evident he had mixed up his travel dates which affected his evidence about when his parents met the visa applicant, which was at the engagement in 2013.The tribunal accepts the review applicant is a credible witness.

31. The tribunal accepts the couple are married, having been engaged in 2013 which was recognised by the family. Marriage certificate, photos and bank cards and a letter from the visa applicant’s confirmed the couple’s relationship. The tribunal accepts the visa applicant has not applied for a partner visa at this stage as she has not visited Australia and wants to see what it is like before committing to married life in Australia. The review applicant hopes she likes it as would prefer to live in Australia. The review applicant’s parents suggested it was better that the visa applicant try Australia first on a visitor visa before applying for a partner visa. It was also evident from the visa applicant’s correspondence that she wants to visit first to see what it is like, how the visa applicant lives in Australia, his friends and build a bond as husband and wife before she decides to abandon her work and life in Zimbabwe.  The tribunal accepts it is reasonable and preferable that the visa applicant be able to visit Australia and see if this is the place she wants to live with her husband.

32. She has a good job in the family business and has just signed a three year lease at her new flat.  This was corroborated in documentary evidence provided after hearing. The tribunal finds she has personal, employment and lease ties in Zimbabwe.

33. While the visa applicant has ties to Australia, being her husband, the tribunal considers at this stage she has stronger ties in Zimbabwe as that is where is has lived and worked and her family live. Further, the tribunal accepts her intention is to see what Australia is like before committing to a partner visa. The tribunal considers a future possible partner visa is also another incentive for the visa applicant to comply with the visa conditions as she would not want to jeopardise any future application, if it were made.

34. The tribunal accepts the visa applicant has also travelled to a number of other African countries for holiday and shopping and this was corroborated by the stamps in her old passport provided after hearing. The tribunal is particularly persuaded by the documents provided after hearing which corroborated the review applicant’s evidence at hearing in this regard.

35. Further, it was evident that the visa applicant and his family, have a good immigration history, having arrived in Australia on 457 work visas and obtaining permanent residence on an 856 employer sponsored visa.

36. Having considered the evidence as a whole and in particular the documentary evidence provided after hearing which corroborated the review applicant’s evidence the tribunal accepts the review applicant and visa applicant’s assurances that the visa applicant will return to Zimbabwe.  Further, the tribunal considers the likely future partner visa by the visa applicant and future visits of other family to Australia is a strong incentive for the visa applicant to abide by conditions of the visa. Based on the evidence before it, the tribunal finds the visa applicant has strong family, personal and employment ties in Zimbabwe. The tribunal accepts the visa applicant wants to visit Australia before deciding to settle in Australia with her husband and apply for a partner visa and she does not want to rush into making such a decision without first seeing what it is like. The tribunal considers this is evidence of further incentive and indicates strong ties to and preference for her home country.

37. For the above reasons the Tribunal is 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 met.

    DECISION

38. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Michelle Grau
    Member