MADECHIHWE (Migration)

[2023] AATA 3509

MADECHIHWE (Migration) [2023] AATA 3509 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wellington Madechihwe

VISA APPLICANT:  Mrs Anna Madechihwe

CASE NUMBER:  2215108

HOME AFFAIRS REFERENCE(S):          BCC2022/2210422

MEMBER:Naomi Schmitz

DATE:20 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2023 at 3:41pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting brother – genuine temporary entrant and compliance with conditions – incentives to remain or return – immediate family and settled life in home country – other relatives in home country, Australia and third country – review applicant’s visa history – political and socio-economic conditions in home country – review applicant’s offer of security bond – no corroborative evidence provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 360(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 6 October 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 June 2022. 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 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 (Cth) (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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 14 October 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 30 August 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 9:30 am (NSW time) on 18 September 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review, the review applicant provided to the Tribunal the following:

   a.A response to hearing invitation indicating that the visa applicant would attend the hearing and that witness, Ms Fungai Madechihwe (Ms Madechihwe), the review applicant’s spouse, would give evidence regarding the purpose of the visa applicant’s visit and financing her travel expenses; and

   b.A cruise ship booking for the visa applicant.

8. On 13 September 2023, the Tribunal wrote to the review applicant and noted that the response to hearing invitation indicated that evidence was proposed to be called from witness Ms Madechihwe. The Tribunal requested a written statement from any proposed witness by the close of business on 13 September 2023. The letter advised that the Tribunal Member would then consider the relevancy of the evidence and determine if it was necessary to hear evidence at hearing.

9. On 13 September 2023, the review applicant filed a signed statement by Ms Madechihwe.

10. On 13 September 2023, the Tribunal advised that the Tribunal Member had considered the contents of Ms Madechihwe’s statement but did not require her to give evidence at hearing. The Tribunal Member was satisfied that the evidence could be given by the review applicant and visa applicant and supported by independent evidence.

11. The review applicant appeared before the Tribunal on 18 September 2023 to give evidence and present arguments. The visa applicant did not appear. The review applicant stated that as it was 2:00 am in Zimbabwe [it was 1:30 am Zimbabwe time] that the visa applicant would not give evidence.

12. The Tribunal Member indicated to the review applicant that it was the Tribunal’s expectation that the visa applicant would be available to give evidence given she was the person seeking the visa. The Tribunal further noted that the review applicant had indicated her attendance in the response to hearing invitation signed 4 September 2023. The Tribunal Member explained to the review applicant that the Tribunal could not assume what evidence the visa applicant would have given as to do so would be speculative. The review applicant indicated he understood.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. The visa applicant is a 42-year-old citizen of Zimbabwe. She currently resides in Harare, Zimbabwe, and is of the Christian faith (Pentecostal Church). In the present case, the visa applicant seeks the visa for the purposes of visiting her brother, the review applicant, who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231. At hearing, the review applicant gave evidence that his parents passed away in 1996 and that the visa applicant as the eldest of five children had been his mother figure. The purpose of the visit is also to spend time with the review applicant’s wife and two sons aged two and five years who the visa applicant is yet to meet. The review applicant also stated he intended on taking the visa applicant sightseeing, including to the Sydney Harbour Bridge and Opera House.

16. At the time of application, the visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 30 July 2022 and a departure date of 31 October 2022. At hearing, the review applicant gave evidence of the same and confirmed that she would be travelling alone, with her husband and two children remaining in Zimbabwe.

17. In the visa application, the visa applicant indicated that her stay would be funded by the review applicant, including her airfare, accommodation and living expenses. Banking records and pay slips of the review applicant and his wife were provided. At hearing, the review applicant gave evidence that he and his wife had financial capacity to finance the visa applicant’s stay. The review applicant is employed as a registered nurse at Orange Hospital and his wife works as a Disability Support Worker. In addition, they operate two businesses including, a learner driving school and a nursing agency supplying labour hire to nursing homes. The review applicant earns over $150,000 per annum and the review applicants wife earns approximately $70,000 per annum.

18. 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 previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

19. 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; and

    ·8531 – must not remain in Australia after end of permitted stay.

20. There is no evidence before the Tribunal that the visa applicant intends to work or engage in study or training in Australia for more than three months and accordingly, the Tribunal is satisfied that the applicant will comply with conditions 8101 and 8201. Based on the financial evidence submitted at the time of visa application and the review applicant’s viva voce (oral) evidence at hearing, the Tribunal is satisfied that the visa applicant’s stay will be funded by the review applicant and his wife. The Tribunal is not satisfied that the visa applicant intends to comply with conditions 8503 and 8531 which is discussed below with respect to cl 600.211(c) in the context of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

21. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the purpose of the visit referred to in [14] above. This appears to be a valid reason to apply for a Visitor visa to Australia.

22. At hearing, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside Zimbabwe. The review applicant responded that the visa applicant has travelled to South Africa to visit a brother who now resides in the United States of America (USA). He did not know the duration of her visit.

23. The Tribunal Member asked the review applicant where the visa applicant’s family members reside including in Australia, Zimbabwe, and any other country. The review applicant provided an account of the visa applicant’s family composition which included the following:

    a.    In Australia, the review applicant, his wife, two sons, and an uncle who are all Australian citizens;

    b.    In Zimbabwe, the visa applicant’s husband and two children and a younger sister; and

    c.     In the USA, the visa applicant’s brother. 

24. The Tribunal has taken into account the incentives to return to Zimbabwe at the end of the visa applicant’s proposed visit. The review applicant relied upon the following factors:

    a.The visa applicant has a husband who she is committed to and been married to for 20 years;

    b.The visa applicant has two children, including a son aged 20 years and a daughter aged 25 years and other close family members in Zimbabwe; and

    c.The visa applicant has a settled life is in Zimbabwe, growing home grown produce, and selling surplus vegetables, eggs, and maize to support her family.

25. The review applicant further claimed that as the visa applicant is a housewife and has never worked that she had no skills to induce her to remain in Australia.

26. The Tribunal Member indicated to the review applicant that there was no evidence of the visa applicant and/or her husband owning any property in Zimbabwe or having any significant savings or financial inducements to return. The review applicant did not directly respond to the question, stating that the visa applicant had spent most of her time in Zimbabwe, that she is a mother and a housewife.

27. The Tribunal Member asked the review applicant whether he had returned to Zimbabwe since settling in Australia, and if so, on what dates. The review applicant stated he returned approximately five years after the grant of his [permanent] visa, returning to Zimbabwe in December 2014 to marry his wife and subsequently in 2016 when his brother passed away.

28. The Tribunal Member asked the review applicant about his visa history. The review applicant gave evidence that he originally arrived in Australia on a Student (Subclass 572) visa on 23 January 2009 and subsequently applied for [a permanent visa] in 2009.

29. Under the natural justice provisions, pursuant to s 359AA of the Act, the Tribunal Member put to the review applicant his migration history, which indicated that he first arrived in Australia on a Student (Subclass 572 visa) on 23 January 2009 and that he subsequently applied for a [permanent] visa and as a result obtained Australian citizenship. The Tribunal Member explained that this would be a reason or a part of the reason for the Tribunal affirming the decision under review as it raised concerns that the visa applicant may attempt to do the same and apply for a [permanent] visa as a means of staying permanently in Australia rather than visiting temporarily. The Tribunal Member explained the fact that the Tribunal Member was putting the information to the review applicant was not an indication that the Tribunal Member had made up her mind, rather the Tribunal Member was giving the review applicant an opportunity to respond. The review applicant was advised that he may seek additional time to comment on or respond to the information.

30. The review applicant responded that in 2014 he applied for an offshore Partner visa for his wife to come to Australia and that the same issue was brought up and that the Department did not accept that his spousal relationship was genuine. He stated it took three years for his wife to be granted her Partner visa and that they have since been married for 10 years, have two children and have built a home. He stated that his mother-in-law visited Australia in 2018, staying for one year and complied with her visa conditions returning to Zimbabwe. The Tribunal Member indicated that this did not directly answer the question and suggested to the review applicant that he address his migration history as opposed to telling the Tribunal about the difficulties in being granted a Partner visa which did not advance his case.

31. The review applicant denied that his sister would seek a [permanent] visa. He stated her husband did not want her to visit Australia and reiterated that he only wanted his sister to visit for three months.

32. The Tribunal Member asked the review applicant about the basis for his [permanent visa application].  [Information redacted.]

33. The Tribunal Member asked the review applicant what distinguished his situation from the visa applicant’s circumstances. The review applicant claimed that the visa applicant had no reason to seek a [permanent] visa as she [did not have the review applicant’s work history].

34. The Tribunal Member explained that as a relevant factor pursuant to cl 600.211(c), that the Tribunal may consider the situation of a visa applicant’s home country, Zimbabwe, as this may appear to be a disincentive to return. The Tribunal Member referred to the Department of Foreign Affairs and Trade (DFAT) Country Information Report which states that Zimbabwe’s economic and political environment has deteriorated over the past couple of decades, with it having long running economic and political crises. A combination of political instability, chronic economic mismanagement, global economic fluctuations, and ongoing drought have had a major debilitating effect on the economy leading to hyperinflation. Economic mismanagement and hyperinflation have acted as significant ‘push factors’ for emigration from Zimbabwe with people in search of better economic and employment opportunities. The report also referred to the fact that since 2015 Zimbabwe has been in economic recession. The World Bank classifies Zimbabwe as a lower-middle income country. The Tribunal Member contrasted this with Australia’s economy which is far stronger and has lower unemployment and asked in light of these differences, why would this not be a disincentive for the visa applicant to return.[1]

    [1] Department of Foreign Affairs Country Information Report – Zimbabwe dated 19 December 2019.

35. The review applicant acknowledged the country situation in Zimbabwe. He stated that the visa applicant genuinely wanted to come to Australia to visit and would return. He stated that she is a law-abiding citizen and that if she were to overstay that this would adversely impact on his ability to sponsor other relatives to Australia, including his and his wife's family and therefore the visa applicant had a very strong incentive to comply. He again referred to his mother-in-law’s recent visit to Australia and compliance with her visa conditions. The Tribunal Member requested the personal particulars of the review applicant’s mother in-law to confirm her travel movement records to which the review applicant provided her name and date of birth. Subsequent enquires confirm that the review applicant’s mother-in-law is aged 63 years and has twice travelled to Australia, including between 5 December 2018 and 5 June 2019 and again on 9 June 2019 and 28 November 2019 through a grant of a Visitor (Subclass 600) visa on 29 November 2018.

36. The review applicant gave evidence that he would be prepared to lodge a security bond to guarantee the visa applicant’s return to Zimbabwe in the sum of $10,000 to $15,000.

    Findings

37. The Tribunal has considered all matters carefully. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see her brother, the review applicant, and his family and to undertake sightseeing. The visa applicant has not travelled to Australia before and therefore there is no demonstrated history of compliance or non-compliance with previous visa conditions. Whilst the Tribunal accepts that the visa applicant has previously travelled to South Africa and at the time had a brother who was residing there, limited weight is placed on this previous travel, due to the country circumstances in South Africa not being comparable to those of Australia, particularly in terms of security. Accordingly, limited weight is placed on this prior travel.

38. Regrettably, since the time of application, no further evidence has been advanced to enhance the visa applicant’s case. Whilst oral assertions were made at hearing, no corroborative evidence was filed in support, such as remaining family in Zimbabwe, assets or financial inducements to return at the end of her proposed stay. Noting the current economic conditions in Zimbabwe, the Tribunal has concerns that this may induce the visa applicant to seek to remain beyond her proposed stay in Australia. Of significance, the Tribunal notes that these were the same issues identified by the delegate over a year ago at the time of the visa refusal.

39. Whilst the Tribunal accepts that the review applicant and his wife have financial capacity and are prepared to financially support the visa applicant, nonetheless, the onus remains with the visa applicant to demonstrate in her own right that she has a genuine intention of staying temporarily. The Tribunal accepts that the review applicant’s mother-in-law has travelled twice to Australia and abided by her visa conditions, however notes there is a 20-year age gap between the review applicant’s mother-in-law and the visa applicant. The Tribunal is further unaware of the mother-in-law's personal circumstances.

1. The Tribunal has considered the offer of a security bond to guarantee the visa applicant’s return if she were to overstay her visa. However, given the paucity of the evidence regarding the visa applicant’s incentives to return to Zimbabwe, and the current economic conditions in Zimbabwe, the Tribunal is not satisfied that the payment of security would allay its concerns about the visa applicant having a genuine intention to stay temporarily in Australia.

2. Thus, considering all of these matters cumulatively, 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

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

   Naomi Schmitz
   Member