Dywili (Migration)

[2019] AATA 408

Dywili (Migration) [2019] AATA 408 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sophia Dywili

VISA APPLICANTS:  Mrs Hilary Rugara
Mr Hopewell Rugara
Miss Vimbai Nomonde Rugara

CASE NUMBER:  1825273

HOME AFFAIRS REFERENCE(S):           BCC2018/3120234 OSF2018/006128

MEMBER:Tania Flood

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application of the first named visa applicant 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.

The Tribunal does not have jurisdiction in relation to the second and third named visa applicants.

Statement made on 30 January 2019 at 9:57am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – attend sister’s graduation ceremony – incentives to return home – close and dependent family members – stable professional employment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 27 August 2018 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 18 August 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas were refused on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied they genuinely intend to visit Australia temporarily.

5. On 30 August 2018 the Tribunal received an application for review of the delegates decision. The review applicant later made a request to the Tribunal for her application to be given priority as it was her hope that her sister and her children would be able to attend her graduation ceremony.  On review, the Tribunal agreed to the request.  However, regrettably the Tribunal was only able to offer the applicant’s a hearing on 25 January 2019 due to scheduling demands.  On 3 January 2019 the review applicant advised the Tribunal that she did not wish to attend the hearing and instructed the Tribunal to make a decision based on the material already submitted noting her disappointment that the date of the graduation ceremony had passed.  In the circumstances, the Tribunal has proceeded to make a decision without taking further steps to interview the applicant’s.

6. For the following reasons, the Tribunal has concluded that the matter of the first named visa applicant should be remitted for reconsideration.  For reasons outlined below the Tribunal does not have jurisdiction in relation to the second and third named visa applicants.

   BACKGROUND

7. The visa applicant applied for a Visitor visa in the Tourist stream for herself and two of her children to visit Australia from 24 November 2018 to 5 January 2019 for the purpose of visiting family and attending the graduation ceremony of the review applicant. The first named visa applicant is a forty seven year old Zimbabwean woman from Bulawayo.  The children who intended to accompany her on the visit are her son aged 17 and daughter aged 12.   Her spouse and another son, aged 23, were to remain in Zimbabwe.  The first named visa applicant is employed as a nurse and she provided copies of payslips to confirm this at the time of application. 

8. The review applicant is the first named visa applicant’s sister and the second and third named applicants aunt.  She recently completed her PhD studies at Charles Sturt University where she has also been employed as a Lecturer for more than nine years.  She provided copies of bank statements and tax records to confirm her employment and financial position.

9. In a letter to the Tribunal dated 30 August 2018, in response to the Delegates concerns, the review applicant stated that her sister has accumulated annual leave and had previously informed her supervisors and her employer about her intended trip to Australia.  She had intended to obtain the visa before booking her annual leave.  Attached to the letter is correspondence from the first named applicant’s employer confirming the grant of annual leave of sixty days.  The review applicant further stated that her sister’s husband is a medical doctor and that they have no intention of migrating to Australia or any other country.  She stated that her sister has travelled outside of Zimbabwe on other occasions and always returned home afterwards as shown by the stamps in her passport which was submitted to the Department.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Only the first named applicant has standing in the review because the original Visitor visa applications were lodged in the Tourist steam. Sub-section 7(b) of the Migration Act states that ‘a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen’. The first named visa applicant is the review applicant’s sister while the second and third named applicants are the review applicant’s niece and nephew. Therefore, only the first named applicant can be considered in this review. The review applicant was advised of this fact by the Tribunal in writing on 21 September 2018.

11. 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.

12. In the present case, the visa applicants seek the visas for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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)).

14. The review applicant first arrived in Australia on 5 December 2004 as the holder of a Subclass 457 Temporary Work (Skilled) visa.  On 13 September 2005 she was granted a Subclass 855 Labour Agreement visa valid for five years.  On 30 September 2009 she obtained Australian citizenship.

15. On the available evidence, the visa applicant has never travelled to Australia.

16. 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.

17. The review and visa applicants have produced evidence of their employment and respective financial positions and the Tribunal is satisfied on the basis of this information that the visa applicant will not, and has no need to work in Australia, if she is granted a Visitor visa. In view of the proposed length of stay and the stated purpose of the visit, which is outlined above, the Tribunal is also satisfied that the visa applicant will not engage in study or training in Australia if she is granted a Visitor visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if the visa is granted.

18. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether they genuinely intend to stay temporarily in Australia.

19. At the time of application it was the visa applicant’s intention to travel to Australia with two of her children who are aged 17 and 12 thereby significantly reducing the number of her immediate family in Zimbabwe.  As noted, the Tribunal only has jurisdiction to consider the review application of the first named visa applicant.  On the available evidence the visa applicant has a sister and brother, and their respective families, living in Australia.  On the other hand she has a husband and three children, two of whom are below the age of 18, residing in Zimbabwe.  The Tribunal considers the presence of close and dependent family members in Zimbabwe will act as an incentive for her to return home at the end of her visit to Australia.

20. The Delegate did not consider the visa applicant’s declared employment to be an incentive for her to comply with the visa conditions due in part to the alleged ambiguity around her leave entitlements.  As noted above, the visa applicant has since provided a letter from her employer which indicates that leave for a period of sixty days has been granted for her to visit Australia. 

21. The available evidence, which the Tribunal has no cause to doubt, indicates that the visa applicant is a registered nurse and her husband is a medical doctor.  While the Tribunal acknowledges that the visa applicant’s earnings are likely to be less than what she could expect to receive in Australia if she were to remain, when all her circumstances are considered the Tribunal finds that the possibility of potentially higher earnings will not be an incentive for her to remain in Australia while her family continue residing in Zimbabwe, particularly as her husband has the benefit of being employed in a higher level position as a medical doctor.

22. The Tribunal acknowledges DFAT’s[1] advice that Zimbabwe has and is experiencing political repression and economic instability/decline, including low economic growth and high rates of unemployment which has acted as a push factor for external migration from the country.  However, as noted the visa applicant and her husband are in stable, professional employment and there is no evidence before the Tribunal of them being involved in any political activity which might provide an incentive for either of them to depart Zimbabwe.  Indeed, the Tribunal notes that in recent years the visa applicant has travelled to neighbouring countries (Botswana and Kenya) and has returned to Zimbabwe despite these unfavourable conditions.

    [1] DFAT, Country Information Report, Zimbabwe, 11 April 2016

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

24. 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

25. The Tribunal remits the application of the first named applicant 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.

26. The Tribunal does not have jurisdiction in relation to the second and third named applicants.

    Tania Flood
    Member