Bhachi (Migration)

[2018] AATA 204

Bhachi (Migration) [2018] AATA 204 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Eusebia Kudzaise Bhachi

VISA APPLICANT:  Ms Thalma Munashe Bhachi

CASE NUMBER:  1710064

DIBP REFERENCE(S):  BCC2017/1084592

MEMBER:Mary Urquhart

DATE:30 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 January 2018 at 5:32pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – Intended to visit her sister – Previously travelled to Australia with mother – Applicant has a medical condition – Little evidence to substantiate ties to her home country

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 600.211, 600.612, 600.231

CASES
 Khanam v Minister for Immigration & Citizenship [2009] FCA 966

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 8 April 2017 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 March 2017. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she was not satisfied that the applicant genuinely intended a temporary stay.

5. The review applicant appeared before the Tribunal on 25 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Precious Nyanhanga by telephone from Zimbabwe.

6. The review applicant was represented in relation to the review by her registered migration agent. The agent did not attend the review.

7. The review was heard together with application 1710061.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

12. There is evidence that the visa applicant has previously travelled to Australia in 2012 together with her mother. The evidence is that she did not abide by or comply with the conditions of the previously held visa to visit Australia. She was granted a Bridging Visa E to depart Australia in 2013.

13. 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.

14. The review applicant and sponsor Ms Eusebia Kudzaishe Bhachi, was born in Zimbabwe. She first came to Australia on a student visa in 2004. She studied Hotel Management and Accounting. Her evidence is that she does not work. She said she is supported by her husband who is a personal carer. In later evidence she said she receives rent from properties she owns in Zimbabwe.

15. The sponsor gave evidence that she is now an Australian Permanent resident. She is aged 33. She married in 2015. She has three children; her husband is the father of the children born 2015 and 2016. Her first child born in 2012 is from an earlier relationship. She was last in Zimbabwe in December 2017.

16. As indicated by her visa application, the visa applicant Thalma is a citizen of Zimbabwe, born on 12 February 1991.She is currently aged 25 years old. The applicant resides in Zimbabwe with her mother.

17. The sponsor gave evidence concerning the applicant’s disability explaining that as well as Down Syndrome she suffers a speech disability.

18. The Tribunal questioned the sponsor about the applicant’s immigration history in Australia. The sponsor gave evidence that the applicant previously travelled to Australia in the care of her mother to attend the sponsor’s graduation. The sponsor explained that whilst they were visiting she “ realised” that she was 33 weeks pregnant and needed her mother’s support for the birth. She gave evidence that her mother and the applicant sought to change their visas due to the circumstances and applied for a waiver of the no further stay condition. She said this was granted but that the grant was made after they had returned home. The Tribunal finds the explanation somewhat unsatisfactory.

19. The Tribunal notes the applicant claimed to be a student in her visa application and questioned the sponsor about the applicant’s occupation. The sponsor explained that the applicant had been enrolled in special classes at the time of the application. She studied such things as music and cooking to “keep her occupied”. She does short courses from time to time.

20. The sponsor claims her mother resides in Zimbabwe and runs two successful businesses there; one in Harari and one in Bulawayo. The businesses she said are bridal shops and transport trucks. The sponsor said their mother employs 3 people in her bridal business and owns 2 trucks. As well she farms “a plot” growing Maize, soya beans and sweet potatoes. No independent evidence was provided regarding the applicant’s mothers businesses.

21. The sponsor explained that as a result of their mother operating businesses in two places the applicant lives with their mother in both Harari and Bulawayo.

22. The Tribunal finds there is no information before it suggesting that the visa applicant would engage in any work, study or training in Australia for more than three months. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201.

23. In this application the Tribunal has very carefully considered condition 8531 – must not remain in Australia after end of permitted stay.

24. Asked how in all the circumstances the Tribunal could be sure the applicant would return home at the end of any visit the sponsor replied that the applicant would return because she requires full time care and relies on her mother for this. The sponsor further explained that she would be unable to provide the care in Australia as she has three young children of her own. The sponsor explained that the applicant is not financially independent. She cannot work and has never worked. She is supported by her mother and sometimes by the sponsor.

25. In response to further questioning about the family’s finances the sponsor gave evidence that she helps her mother out by sending money when the businesses need cash flow. She also assists her mother “management wise” and gives ideas about running the business.

26. The sponsor gave evidence that their father has indefinite stay status in the UK and currently resides there but visits Zimbabwe. The applicant has a sister Precious, who is normally resident in Zimbabwe but who has also applied to visit Australia at the same time as the applicant. (Application 1710061).  The Tribunal whilst accepting the applicant’s reliance on her mother notes there is no evidence of any other immediate or dependent family members of the applicant that will remain in Zimbabwe providing an incentive for her to return home after the proposed visit or who can care for her if required.

27. The evidence is that the applicant is unable to understand the nature of a visa, the visa application process or what a genuine visit is. Asked how the applicant would be able to travel and visit given her difficulties, the sponsor said the applicant would travel with her sister Precious. The Tribunal has given consideration to this and notes the applicant’s previous travel in the care of her mother. However the Tribunal finds the travel plan itself raises concerns that the intention of the visa may not be for a genuine temporary visit.

28. The Tribunal has heard evidence that the applicant has attended specialist courses at a Polytechnic school, though no independent evidence in support of this claim has been provided. It is clear however from the oral evidence of the sponsor that the applicant has special education and medical needs. The Tribunal finds the applicant has few personal commitments and ties to Zimbabwe and that her understanding of these is extremely limited. For this reason the Tribunal has significant concerns that the applicant may be tempted, (with some assistance) to seek to change her visa status if granted a visa in order to access specialist resources in Australia where needs such as hers may be better addressed.

29. The sponsor indicated she would like other members of her family to be able to visit her in Australia in years to come. She is aware that if the visa applicant were granted a visitor visa and subsequently did not comply with her visa conditions, this would have a negative impact on the review applicant sponsoring family members in the future. She indicated she was prepared to put up a security bond to ensure the applicant’s return. The Tribunal has taken this into consideration.  However, even with the lodgement of a security, having weighed up the reasons given for the applicant to return to Zimbabwe against the factors which would encourage her to remain here, 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. Indeed   in the Tribunal’s view there exists a range of factors that indicate that she may not have a genuine intention to stay temporarily in Australia and may be tempted not to comply with the condition that she must not remain in Australia after the period of the permitted stay in Australia. 

30. Whilst the applicant’s mother and the special classes she attends may provide some incentive for her to return home, she is a person with special needs, who has never worked, has no capacity to understand the visa process and there is little evidence to substantiate ties to her home country.

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

32. In particular, the Tribunal has also had regard to country information concerning the economic conditions in Zimbabwe as discussed at the hearing. The country information posted by DFAT assesses that the low-level of development in Zimbabwe acts as a significant ‘push factor’ for external migration. The Tribunal has had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966 to the effect that the Tribunal must consider the particular circumstances of the applicant rather than make broad assumptions based on information regarding a person of the same nationality or social group. Nevertheless, whilst having regard to the principles in Khanam’s case, the Tribunal considers that economic situation in Zimbabwe provides a strong motivation for the applicant to remain in Australia beyond the expiration of her visitor visa despite claimed incentives to return.

33. 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

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

    Mary Urquhart
    Member