Muranganwa (Migration)

[2019] AATA 4032

Muranganwa (Migration) [2019] AATA 4032 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Phibeon Muranganwa

VISA APPLICANT:  Mrs Angela Murangwanwa and Mr Charles Muranganwa

CASE NUMBER:  1804169 and 1804170

HOME AFFAIRS REFERENCE(S):           BCC2017/4238591 and 4238488

MEMBER:Linda Holub

DATE:16 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicants meet  the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 16 September 2019 at 9:18am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – intention to return to Zimbabwe – advanced age – lack of English language skills – active involvement in the Jehovah Witness – political situation in Zimbabwe – credible witnesses – 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 two decisions made by a delegate of the Minister for Immigration on 12 December 2017 to refuse to grant the visa applicants a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2) The visa applicants applied for the visa on 13 November 2017. 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 applicants 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 applicants did not meet cl.600.211 because there was not sufficient evidence provided to the Department to prove the applicants had the means or intention to return to Zimbabwe.  

5) The review applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments in respect of both of his parents. The Tribunal also received oral evidence from the review applicant’s sister.

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

Background

7) The review applicant is a 45 year old Australian citizen, who first came to Australia from Zimbabwe in 2006 on Temporary work (skilled) 457 visa with his first wife and three children. He is the son of the visa applicants and the sponsor for this application.  The first named visa applicant is his mother.  She is a 68 year old.  The second named applicant who is the review applicant’s father is 76 years of age.  They are both national of Zimbabwe.

CONSIDERATION OF CLAIMS AND EVIDENCE

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 applicants seek a visa for the purposes of visiting their family. This visa was originally requested to attend their second son’s wedding in December 2017.  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)).  The visa applicants have not previously travelled to Australia.  They were previously refused visitor visas in 2016 due to a lack of supporting evidence to provide an incentive for them to return to their usual country of residence.

11) The Tribunal must also consider whether the visa applicants 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 review applicant gave evidence which supported written submissions that he operates a business providing care for people with disabilities and that his wife is a registered nurse at Blacktown Hospital.  She also works part-time in his business.  The review applicant gave oral evidence that the family income is approximately $200,000 per annum.

13) The review applicant provided written evidence that he and his wife live in rental accommodation.  They reside in a four bedroom home with their four children.  The review applicant stated that their only assets are their three cars.  He provided written evidence in support of their financial position.

14) The review applicant and his sister provided consistent evidence regarding their parents.  The Tribunal was told that the second named applicant is a retired bank messenger and he receives a small superannuation pension from his previous employer.  Written evidence was provided to support this.  The first named applicant did not previously work outside the home.

15) The Tribunal was told that the visa applicants live on one of their two properties and rent the other one and also receive income from a property owned by their son who lives in South Africa. The Tribunal heard evidence that the visa applicants live in a rural area where they have a small garden and have chickens. They have access to bore water and use solar power so their expenses are low.

16) The Tribunal heard consistent evidence that the review applicant and his two sisters will be paying for the airfares of the visa applicants and that the intention is that they stay a few weeks with each of their three children in Australia.  The Tribunal was provided with written evidence substantiating claims regarding the employment of the review applicant’s two sisters in Australia and that of their spouses.

17) In relation to the incentives for the visa applicants to return to Zimbabwe at the end of the expected stay both the review applicant and his sister gave heartfelt responses in relation to the role of the visa applicants’ role in the Jehovah Witness.  Both are active in their local Hall and are preachers.  An Affidavit of support was provided to the Tribunal.  They have committed to 70 hours a month of door to door witnessing.  The Tribunal was told that the local Jehovah Witness hall is located on their property.  A copy of a lease agreement in respect of this Hall was also provided.

18) The review applicant and his sister also referred to the fact that they have a sibling who lives in a town less than two hours away from the visa applicants. Their sister regularly visits the visa applicants together with her family.  During holiday periods her children stay with the visa applicants. Reference was also made to the role that the visa applicants have in the extended family. As the senior elder, the second named applicant is the person whose advice is sought in relation to family decisions, as well as traditions and obligations of the extended family. As the ‘big aunt’ advice is sought from the first named applicant in relation to marriages and other matters.

19) The review applicant also talked about the visa applicants’ role in relation to two family members who the visa applicants have raised and who still reside with them as a further incentive for them to return at the end of their stay.  He also referred to the fact they are not very well educated and do not speak English and would find it difficult to manage in Australia.

20) The witness also referred to the fact that the visa applicants are elderly that they are very comfortable in their own environment in that they are hands-on people who do their own cropping and raise chickens. She stated that they would be uncomfortable in the city environment other than for a short period of time and are likely to be bored here. She also stated that the visa applicants have visited their son in South Africa on two occasions and even though conditions are better there that have chosen not to remain in South Africa. In addition she referred to the extended family and the importance of that to the visa applicants in terms of their culture.

21) The review applicant gave oral evidence that although the political situation in Zimbabwe is sometimes unstable the visa applicants live in a quiet rural area.  Furthermore, he stated that as active and committed Jehovah Witness members they have no political involvement.  They have not had any problems in Zimbabwe  They have not experienced any problems as a result of the political/security situation or because of his religion or ethnicity.

22) The Tribunal was told the visa applicants would not engage in study or training, nor would they work in Australia. 

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

Findings

24) The Tribunal considered the review applicant and his sister to be credible witnesses.  They presented the evidence in a straightforward, open and consistent manner and the oral evidence was substantiated by the written evidence.

25) Having considered all the evidence the Tribunal accepts that the visa applicants wish to come to Australia for three months for the purpose of visiting their three children and their families. The Tribunal accepts that that the review applicant and his two siblings are prepared and able to pay the costs of the travel and the day-to-day expenses while the visa applicant are staying with them.  The Tribunal accepts that the visa applicants have no intention of working studying or undertaking any training in Australia.  The Tribunal has had regard to their age and lack of English language skills.  The Tribunal accepts that the visa applicants’ home and property their children and grandchildren in Zimbabwe and South Africa as well as their role in the extended family and their active involvement in the Jehovah Witness provide strong incentives for them to return to their country of residence at the end of their permitted stay in Australia.  Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicants intend to comply with the conditions of the visa.

26) 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

27) 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.

Linda Holub
Member