Kuveya (Migration)

[2018] AATA 5609

Kuveya (Migration) [2018] AATA 5609 (20 November 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Cathrine Hazel Kuveya

VISA APPLICANT:  Ms Bridgete Muchanyara Marimirofa

CASE NUMBER:  1812358

HOME AFFAIRS REFERENCE(S):           BCC2017/4800851

MEMBER:Christine Cody

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 20 November 2018 at 4:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visit sister's family – incentive to return to home country – lack of employment – country conditions – significant family ties and responsibilities in Zimbabwe – moral and religious values – means to support herself in Australia – access to adequate funds – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212

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 2018 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 is a single female citizen of Zimbabwe. She applied for the visa on 15 February 2017. She seeks to visit her sister and her sister’s family in Australia. 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 that a genuine temporary visit was intended. The delegate noted that the visa applicant is a 48-year-old unemployed female who wishes to travel to Australia to visit family for 12 months. It was noted that she had no previous travel to Australia. The delegate was not satisfied that there was any evidence of personal assets or employment to act as an incentive to return to Zimbabwe. The delegate was also not satisfied that the visa applicant had adequate means to support herself in Australia and therefore did not meet cl.600.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The Tribunal has carefully weighed all of the evidence and is satisfied that the two issues before it are met, namely: that this particular visa applicant intends a genuine visit to Australia and then to return to Zimbabwe, and the visa applicant had adequate means to support herself in Australia.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT CLAIMS AND EVIDENCE

4. The relevant claims and evidence are set out in the documentary material, being the visa application form, documentary supporting evidence, as well as the oral evidence. The review applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband. No one requested the use of an interpreter and the Tribunal is satisfied that everyone could present arguments and evidence and understand the Tribunal’s questions and the proceedings.

5. By way of summary:

   ·     The visa applicant is from Chinhoyi, Mashoneland West. She has never before visited Australia. She plans to stay for 12 months, with her sister, her sister’s husband, and their children.

   ·     The visa applicant provided a copy of her national identification card, copy of her passport, invitation letter from the review applicant noting that she and her husband are Australian citizens and will provide the sister with the financial costs to stay in Australia.

   ·     The review applicant has three children including a child born a few months ago. She has again (accidentally) become pregnant recently. Prior to this she had a stillborn child which was because she was stressed and had to take care of the other children without her husband because he was working overseas. Both she and her husband have lost their parents in Zimbabwe and decided to ask the review applicant’s sister to come to Australia for emotional and social support as well as to help with the review applicant’s children. They will take care of the financial cost of her stay. A later letter indicated that the review applicant’s husband had stopped working offshore and thus was more present, but that the review applicant still required emotional assistance/support.

   ·     The review applicant provided documents including income tax estimates for herself and her husband showing that they have a significant combined income, a death certificate from June 2016 for a still-born child of the review applicant (in Australia), and death certificates for the each of the parents of the review applicant and her husband in Zimbabwe.

   ·     The visa applicant was last employed as a retail auditor on 22 February 2009. She told the Tribunal (as did the review applicant) that she has been trying to obtain work but has been unsuccessful because of the economy and situation in Zimbabwe. She continues to try to obtain work now. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations.

7. Clause 600.211 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 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)). As the visa applicant has not previously visited Australia, this is not relevant.

9. 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):

   ·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.

10. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

11. The Tribunal accepts that the visa applicant does not intend to work or study in Australia. The Tribunal accepts that as a family member she intends to lend a helping hand to her sister during the visit.

12. The Tribunal’s concern, as discussed with both applicants and the witness, was whether the visa applicant intends to remain in Australia after the expiry of a visitor visa. In this regard, the Tribunal notes that she would be able to apply for a protection visa, but not any other visa while remaining in Australia. Although the Tribunal has concerns about the incentives for the visa applicant to remain in Australia past the expiry of a visitor visa, it is persuaded by the oral evidence of all three witnesses and their assurances. It found the witnesses’ evidence to be forthright, credible and persuasive. The Tribunal is prepared to accept the reasoning and assurances and consistent evidence of all three witnesses to the effect that:

    ·     The visa applicant is a Jehovah’s Witness, she has had this faith for a long time, she believes that if she disregards the terms of her visa, then she will be doing harm to God. She has had no problems in Zimbabwe as a Jehovah’s Witness;

    ·     She is the oldest child and is responsible for the care of the family home and maintaining the property on the land. She grows tomatoes and vegetables on a subsistence basis, and she is very connected to her life in Zimbabwe. She does voluntary work assisting elderly widows/widowers with chores.

    ·     She is the one who will continue to be responsible for the family home, because although she lives with her younger sister, her younger sister has been inspired to follow the career of the review applicant, and has also studied electrical engineering and has become involved in a trade. It is expected that her younger sister will at some stage leave the family home, going to different pastures as the review applicant did, but that it will always be the visa applicant’s job to maintain the continuity of remaining at the family home in Zimbabwe.

    ·     The review applicant and her husband have been residing in Australia for 11 years, and they have been law-abiding citizens. They have not had any family members come to visit them, and they do not wish to jeopardise any future visits from family members or adversely affect their credibility in any future dealings with the Department and/or the Tribunal, which they acknowledge would be the case if the visa applicant did not comply with the conditions of her visa. They are bringing up their children with a moral compass, and they do not wish to be a bad example for the children.

13. The concerns include that the visa applicant’s last employment was in 2009, and although she spends her time doing voluntary work and looking after the family home, she has been trying to obtain work, and has not been successful. The Tribunal noted that this was supported by the country information in relation to employment in Zimbabwe, and in relation to gender.  The Tribunal discussed at hearing the concern about the country situation. The Tribunal put that DFAT had assessed that overall the low level of development in Zimbabwe acted as a significant push factor for external migration, and that the economic situation was poor in particular in relation to women and those not connected to the government.[1] The Tribunal noted that “Once the bread basket of the region, since 2000 Zimbabwe has struggled to feed its own people due to severe droughts and the effects of a land reform programme that saw white-owned farms redistributed to landless Zimbabweans with sharp falls in production. The fall of Robert Mugabe in 2017 freed up politics and the media, but the country remains cash-strapped and impoverished”.[2]  Further, there is a lot of corruption, there is a significant amount of rape and violence towards women. Social stigma and societal perceptions that rape was a “fact of life” continued to inhibit reporting of rape; sexual harassment was prevalent in universities, workplaces, and parliament. Discrimination in employment and occupation occurred with respect to race, gender, disability, sexual orientation, and political affiliation for civil servants. The United Kingdom Department for International Development’s 2011 Gender and Social Exclusion Analysis Report indicated women experienced extensive economic discrimination, including in access to employment, credit, pay, and owning or managing businesses.[3]

    [1] DFAT Report 11 April 2016 :The United Nations 2014 Human Development Index ranked Zimbabwe 156 out of 187 countries. The World Bank classifies Zimbabwe as a low-income country – GDP per capita was around USD 1,031 in 2014. An estimated 72 per cent of the country's population lives in poverty and more than one-fifth in extreme poverty. Estimates of unemployment vary greatly. The official unemployment rate in Zimbabwe is 11.3 per cent, although unofficial estimates put it as high as 90 per cent. In reality, most of the population is 'employed' in the informal sector. For example, as of 29 July 2015, there were an estimated 20,000 unlicensed street vendors in Harare.

    [2] BBC profile on Zimbabwe - USDOS Country reports on Zimbabwe, 20 April 2018 >

    The Tribunal is however prepared to accept the evidence and assurances of all three witnesses that the visa applicant will return to Zimbabwe, no matter what, at the end of her visitor visa. It also accepts the evidence that the visa applicant has not had any problems as a woman or otherwise (except for employment), and if she came to Australia and made such a claim, she would be lying.  The Tribunal accepts that she is prepared to return to Zimbabwe and the conditions in which she has been living since 2009 and that although she does not have work, and continues to look for work, she survives financially because she has been given monies from her parents’ estate, and she also does subsistence farming. She is satisfied with her life in Zimbabwe, including her voluntary work and her involvement there as a Jehovah’s Witness.

14. The Tribunal is prepared to accept that the visa applicant has a well-established and settled way of life in Zimbabwe, that she has the moral responsibility for looking after the family home, and although the country conditions, as well as her lack of employment, in Zimbabwe could be considered an incentive to remain in Australia, these are the country conditions she has been used to for many years, and they are the country conditions in which the rest of her family and friends reside, and where her life takes place. The Tribunal is prepared to accept that she has a relatively good financial position, and significant family ties and responsibilities in Zimbabwe, and that her moral/religious values mean that she will abide by the conditions of her visa.

15. A further concern was that the needs that the review applicant and her husband have for some family support will not go away by the end of the visitor visa. The Tribunal put to the witnesses that this would give the visa applicant a strong incentive to stay, as well as the review applicant and her husband strong incentives to seek that she stay. In response, it was stated that they will be using their money to support her and to pay for her needs, but when she is not there, they will be using outside help and they can use that money that they will be no longer spending on the visa applicant, for that outside help.

16. In the circumstances, the Tribunal is satisfied that the visa applicant will abide by the conditions of the visa and return to Zimbabwe within the permitted period of stay if granted a visa.

17. 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.

18. The Tribunal did have some concerns in relation to the financial aspects. While noting that the review applicant and her husband earn good salaries, it discussed with them the situation if a bond was imposed by the Department, and although they accepted that they could probably put up a bond of $10-$15,000, they did not seem inclined to do so, saying that this would lead to hardship. This caused the Tribunal concern as to whether they could contribute to the visa applicant’s expenses such that she could have adequate means to support herself in Australia.

19. This does not, however, lead the Tribunal to finding that there are insufficient funds for her visit in Australia. The Tribunal accepts that the review applicant and her husband earn good salaries and will pay for all of the visa applicant’s expenses, even with a fourth baby on the way, and that the visa applicant also has funds to contribute. The Tribunal is prepared to accept that the visa applicant has access to adequate means to support herself during the period of her intended stay in Australia.

20. 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. Further, it finds that the requirements of cl.600.212 are met.

    DECISION

21. 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;

    ·c.600.212 of Schedule 2 to the Regulations.

    Christine Cody
    Member