Matsveru (Migration)

[2017] AATA 355

Matsveru (Migration) [2017] AATA 355 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Teresia Matsveru

VISA APPLICANTS:  Mr Tutani Elias Dube
Mrs Teresa Dube

CASE NUMBER:  1605188

DIBP REFERENCE(S):  BCC2016/862721

MEMBER:Roslyn Smidt

DATE:6 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2017 at 3:37pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.232 – No documentary evidence of the relationship – Sponsorship by a prescribed person – Late awareness of the biological father – Letters of support from half-siblings – No DNA Testing

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.232

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 18 March 2016 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 25 February 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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.600.232, which requires that the visa applicant be sponsored by a prescribed person or organisation.

4. The review applicant is a 47 year old married woman. She arrived in Australia on a temporary skills visa and obtained permanent residency on skilled visa application. She is now a citizen. She currently works as a clinical nurse at the Parramatta Community Health Centre.

5. The review applicant states that the visa applicants are her biological father and her stepmother. She states that he was unaware of the existence of her biological father until 2013 when her mother told her who her real father was. Prior to that she believed her stepfather to be her biological father.  She travelled to Zimbabwe in December 2014 to meet her biological father. She invited the visa applicants to visit her in Australia for a family reunion for a period of three months from April to June 2016.  She provided copies of messages she exchanged with a woman called Hazie who she states is her half-sister in February 2014.

6. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.232 because no evidence was provided to prove the relationship between the visa applicant and the review applicant and he was not satisfied that the visa applicant had been sponsored by a prescribed person or organisation.

7. The review applicant attended hearing of the Tribunal on 18 January 2017. She explained that while she had been aware for some time that her mother’s husband was not her biological father it was not until shortly before her mother died that she learned that her biological father still lived in the city her mother had resided in when they were in a relationship. One of her aunt’s still resides in that city and she was able to locate her biological father through that contact.

8. I noted that the primary decision maker had refused her application as in the absence of any documentary evidence regarding her relationship to the visa application she was not satisfied that he was her father and asked if she was able to provide any other evidence of their relationship. She said that she had no additional evidence to provide. I noted that it appeared that a DNA test to establish paternity appeared to cost between $230 and $550 and asked whether she had considered arranging for such as test. The review applicant said that she had not considered taking such a test.  I advised her that in the absence of some more concrete evidence it was difficult for me to be satisfied that the review applicant was her father and that she was able to sponsor him for a visitor visa.

9. The visa applicant also gave evidence at the hearing. He also stated that he was the applicant’s biological father.

10. At the end of the hearing I agreed to allow the review applicant a month to provide additional evidence regarding her relationship to the visa applicant. On 17 February 2017 the review applicant provided letters from her half siblings Hazie Sibanda, Lucia Tutani Dube, Edward Dube and Samuel Dube. In essence they state that the review applicant is their half-sister, that the visa applicants are well established in Zimbabwe and that they support their parents’ decision to visit to Australia. No evidence was received which confirmed her relationship to the visa applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl.600.232 is met.  According to this Clause, the one of the following subclauses:

    (2)  The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

    (a)  a relative of the applicant; or

    (b)  a relative of another applicant who is a member of the family unit of the applicant;

    or

    (c)  a relative of another applicant in relation to whom the applicant is a member of the family unit.

    (3)  The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

    (a)  is a member of the Commonwealth Parliament or a State Parliament; or

    (b)  is a member of the Legislative Assembly of the ACT or the Northern Territory; or

    (c)  holds the office of mayor.

    (4)  The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

12. Apart from the review applicant’s assertion and letters from several people claiming to be her siblings no evidence has been provided to support the review applicant’s claim that the visa applicant is her father. In the absence of at least some documentary evidence supporting the review applicant’s claim that the authors of these letters are her relatives I am unable to given them any weight. Nor if the review applicant’s assertion sufficient to convince me that the visa applicant is her biological father. 

13. On the evidence currently before me I am not satisfied that the visa applicant is the father of the review applicant. He therefore does not meet cl.600.232 (2)(a) There is no suggestion that he meets any of the other criteria set out in  cl.600.232.  In these circumstances I find that the requirements of cl.600.232 are not met.

    DECISION

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

    Roslyn Smidt
    Member