Mufundirwa (Migration)

[2018] AATA 5616

Mufundirwa (Migration) [2018] AATA 5616 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Azania Mufundirwa

VISA APPLICANT:  Mr Roy Mufundirwa

CASE NUMBER:  1726878

DIBP REFERENCE(S):  BCC2017/3265637

MEMBER:Frances Simmons

DATE:28 September 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.

Statement made on 28 September 2018 at 5:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – genuinely intends to stay in Australia temporarily –  visiting brother – sufficient incentive to return to home country – family – business – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 5 October 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 7 September 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 the delegate was not satisfied that the visa applicant genuinely intends to visit Australia temporarily for the purpose for which the visa is granted.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The visa applicant is a thirty-three year old man from Mutare, Zimbabwe. The visa applicant is the brother of the review applicant and a citizen of Zimbabwe. He seeks to visit Australia for one month to visit his brother and sister-in-law. His parents and four of his siblings live in Mutare.

7. The review applicant provided written submissions and documentary evidence of his capacity to provide a security bond and evidence of the visa applicant’s travel to South Africa and Mozambique. The review applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

   Issue for determination

8. 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.

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

10. 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 travelled to Australia there is no record of compliance, or for that matter non-compliance.

11. 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.

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

13. The Tribunal finds the review applicant is a permanent resident of Australia who resides in Australia with his wife, who is also a permanent resident. The review applicant and his wife are employed as Senior Geotechnical Engineers at Tritton Mine and Endeavour Mine in Central West New South Wales.[1] On the evidence before it, the Tribunal found the review applicant to be a credible and sincere witness. Taking evidence from the visa applicant was difficult because of the poor quality of phone line. The evidence that was provided by the visa applicant was consistent with that of the review applicant.

    [1] The review applicant has provided  PAYG statements to the Department and updated bank statements to the Tribunal.

14. The Tribunal finds that the visa applicant is the brother of the review applicant. The review applicant and the visa applicant gave consistent evidence that the visa applicant lives with their parents, has worked as a diesel plant fitter. The review applicant gave evidence that he and his brother lived together in Zimbabwe and he would welcome the opportunity to have brother visit his family in Australia so they can spend family time together and explore some parts of Australia. The review applicant states he will be covering the costs of his brother’s travel to Australia as well as any costs arising during his visit.

15. The review applicant’s parents, his three brothers and two sisters live in Zimbabwe. The visa applicant, who is a thirty-three years old citizen of Zimbabwe, is the younger brother of the review applicant. The visa applicant is currently living with his parents and sometimes his sister also lives in this house. He is currently running a taxi business and assisting with projects on the family land and doing casual work as a diesel fitter. The review applicant and the visa applicant gave consistent evidence that the review applicant provided financial assistance to his brother in December 2017 to assist him to start a taxi business (he had purchased the car for his brother).  

16. The Tribunal finds the review applicant has presented acceptable evidence they can provide accommodation and financial support to the visa applicant during his visit to Australia. As noted above, the review applicant and his wife are engineers who are currently employed in regional New South Wales. They have provided evidence of savings in the sum of $AUD29 336 and $AUD63, 829, which is consistent with the review applicant’s evidence that it is with their means to provide a substantial security bond. The Tribunal also considers that, if a security bond was required of the review applicant, the review applicant would be very motivated to ensure the visa applicant does return to Zimbabwe before the expiry of his visa.

17. The Tribunal acknowledges that the delegate was concerned that the prevailing country conditions in Zimbabwe might discourage the visa applicant from returning to this country at the end of his permitted stay. The Tribunal discussed with the review applicant the political violence that followed the recent elections in Zimbabwe. The review applicant stated that he and his family were Christians and that their priorities were spiritual not political: they prayed for good leadership and respected the need to vote but they were not actively engaged in politics. He stated that the visa applicant was not a member of any political party or politically active and his family did not discuss political matters. The review applicant himself has never been involved in political activity and he stated that his brother had not experienced any difficulties in Zimbabwe for political or religious reasons.

18. The visa applicant told the Tribunal that he did not have difficulty living in Zimbabwe. The Tribunal accepts that the visa applicant has travelled in and out of Zimbabwe to South Africa and Mozambique on multiple occasions.  The review applicant has also returned to Zimbabwe on multiple occasions to visit his family. There is nothing in the evidence before the Tribunal that indicates that the visa applicant is of any adverse interest to the authorities or anyone else in Zimbabwe for any reason.

19. On the evidence before it, the Tribunal accepts the visa applicant has strong family, cultural and personal ties in Zimbabwe and that he lives in the family residence in Zimbabwe. The Tribunal accepts that he has a serious girlfriend, Lorain Zamba, in Zimbabwe. The Tribunal acknowledges that the visa applicant does not have any dependent family members in Zimbabwe and that he required the financial support of the review applicant to establish a business in Zimbabwe. The Tribunal discussed with the review applicant its concern that the visa applicant may have economic motivations for seeking to remain in Australia after the end of his permitted stay. As put to the review applicant, DFAT reports that the World Bank classifies Zimbabwe as a low-income country – GDP per capita was around USD 1,031 in 2014. Most of the population is ‘employed’ in the informal sector and DFAT assesses that the low-level of development in Zimbabwe acts as a significant ‘push factor’ for external migration.The review applicant said he understood the Tribunal’s concerns, but said that his reputation was on the line and he did not want to be associated with any breaches of immigration law. He pointed to the fact that his brother had travelled to South Africa in 2013 and 2014 and returned to Zimbabwe as well as making multiple trips to Mozambique. He also pointed to his own compliance with Australia’s immigration laws.

20. The applicants gave evidence that the visa applicant wanted to visit in Australia for around a month. The review applicant said he planned to take some time off work and have a road trip with his brother. He said he and his wife had good jobs but they were staying in the outback (in Cobar and previously in Mount Isa) and they yearned to share their experiences with their family. His brother would see the country and have family time. The Tribunal notes that the review applicant has been forthcoming about the fact that his brother previously applied offshore for a student visa in Australia in 2015. He gave evidence that his brother was accepted by the university but the Department was not convinced he was a genuine student because the study his brother wished to pursue involved a change in career from his work as a diesel plant fitter and, having regard to the applicant’s economic circumstances in Zimbabwe, the department was not satisfied that the visa applicant intended a genuine temporary stay in Australia. The review applicant was frank and forthcoming about this issue. He also assured the Tribunal that he had always complied with immigration laws, that his brother would do the same, he has significant family ties in Zimbabwe and that he had supported the family to develop businesses in Zimbabwe that he did not want to have an adverse immigration record.

21. There is nothing in the review applicant's migration history to indicate that he has circumvented the proper migration channels to migrate to Australia. The review applicant told the Tribunal that he and his wife planned to have children in Australia and that it was important to them to be able to invite family members to visit them in Australia when they began a family. He explained that part of his motivation in seeking review of the decision to refuse to grant his brother the visa was that it was important to him that his family members, including his mother, be able to visit Australia. The Tribunal discussed with the review applicant the implications of sponsorship and consequences of non-compliance with visa conditions on the sponsor. He said he would not want his brother to overstay as this would jeopardize his capacity to share his life with other family members in the future.

22. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining visitor visas in the future. The Tribunal accepts the review applicant’s evidence that he wishes to maintain a good record so that he can sponsor other relatives, including his mother, in the future. The Tribunal accepts that the review applicant provides financial support to his family in Zimbabwe. The review applicant described himself as a like a guardian to his younger brother and the Tribunal accepts that he has considerable influence over the visa applicant. The Tribunal is satisfied that the review applicant is well aware of the obligations of sponsorship and consequences of non-compliance and it accepts that this will provide an additional inducement for compliance with visa conditions.

23. The review applicant is prepared to provide a substantial financial security if necessary and has available funds to do so. While the Tribunal has some residual doubts, the Tribunal has placed weight on the review applicant's willingness to pay a security bond to facilitate the grant of the visa and its favourable assessment of the credibility of the applicants.  On balance, the Tribunal accepts that the visa applicant’s intention to only visit Australia is genuine and that the purpose of the visit, to see his brother and his sister-in-law, is consistent with a temporary visit to Australia. The Tribunal is satisfied that the presence of the visa applicant’s family and girlfriend will encourage him to return to Zimbabwe and places weight on the review applicant's willingness to pay a substantial security bond in order to facilitate the grant of the visa. The Tribunal is satisfied that all of these factors will provide sufficient incentive for the visa applicant to return to Zimbabwe before the end of any permitted stay.

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 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.

    Frances Simmons
    Member