Ziwenga (Migration)

[2021] AATA 4717

Ziwenga (Migration) [2021] AATA 4717 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Theresa Ziwenga

VISA APPLICANT:  Mr Raphael Kandema

CASE NUMBER:  2004371

HOME AFFAIRS REFERENCE(S):          BCC2019/6521580

MEMBER:Naomi Schmitz

DATE:22 November 2021

PLACE OF DECISION:  Melbourne

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 22 November 2021 at 2:17pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – substantial compliance with visa conditions – employment details – visa applicant’s studies in Poland – providing emotional support – previous compliant family international travel – balance of family in Zimbabwe – property inheritance in Zimbabwe – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600. 231, 600.612; r 2.05

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 29 January 2020 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 6 December 2019. 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. In particular, the delegate was not satisfied that the visa applicant’s family members and alleged employment constituted sufficient inducements to return to Zimbabwe.

5. The review applicant appeared before the Tribunal on 10 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Lublin, Poland, where he is currently studying.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in Poland and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. After this matter was constituted to the Tribunal Member, on 26 October 2021 the Tribunal wrote to the review applicant and requested updated information and records to be provided by 3 November 2021 including; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all countries the visa applicant has travelled to, if any, including the  arrival and departure dates; evidence of the visa applicant’s current employment, if any, including recent evidence     of pay slips and taxation returns; evidence of property ownership, for example a certificate of title/title deed or rates notice         and approximate value; if the visa applicant is currently leasing property, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial        situation such as money in bank accounts; and any other information relevant to the visa applicant’s activities, commitments  or relationships in his home, including family.

9. On 2 November 2021, the Tribunal received the review applicant’s ‘Response to the Hearing Invitation’ signed on 2 November 2021. This document indicated that the visa applicant would not be giving evidence and that only the review applicant would be participating.

10. On 3 November 2021, the Tribunal wrote to the review applicant advising that the Tribunal noted that the visa applicant would not be participating in the hearing. In response the Tribunal advised:

    It is the Tribunal Member’s expectation that the visa applicant will participate in the proceedings and be available to give evidence at the hearing scheduled at 9:30am on 10 November 2021. Please be aware if the visa applicant does not give evidence, the Tribunal cannot assume what evidence the visa applicant would have given. In other words, by failing to be called by you the review applicant, the Tribunal Member cannot conclude what her evidence would have been as to do so would be speculative. The Tribunal needs to be satisfied what the visa applicant’s intention is when traveling to Australia. The Tribunal Member may not be able to be satisfied that the visa applicant has a genuine intention to stay temporarily in Australia without hearing direct evidence from the visa applicant.

11. On 3 November 2021, the review applicant confirmed that the visa applicant would make himself available to give evidence at the hearing.

12. In response to the Tribunal’s letter dated 26 October 2021, on 3 November 2021, the review applicant provided the following documentation; a letter from the review applicant to the Tribunal dated 2 November 2021 outlining her personal circumstances and the purpose of the visa applicant’s visit to Australia; an itemised list of countries the visa applicant has travelled to and the dates of travel; a copy of the visa applicant’s Polish passport with country stamps; a copy of the visa applicant’s Zimbabwe passport; a translated letter from Polish to English confirming the visa applicant has been accepted into the Vincent Pol University in Lublin Poland undertaking a Bachelor of Nursing commencing on 1 October 2021 with an expected completion date of 30 September 2024; a Vincent Pol University ‘Orientation Week’ invitation letter’; the birth certificate of the visa applicant’s defacto spouse and the birth certificates of the visa applicant’s three children.

13. On 10 November 2021, after the hearing, the Tribunal requested that the review applicant provide by 17 November 2021 (with the ability to request an extension if necessary) the following documentation: the review applicant’s last two pay slips, ensuring it clearly displays her annual salary; evidence of the review applicant paying for the visa applicant’s university tuition such as an electronic funds transfer (identifying the relevant transaction on her bank statement) or receipt/invoice from the university; and evidence that the visa applicant’s Bachelor of Nursing degree from the Vincent Pol University in Lublin, Poland is recognised in Zimbabwe.

14. On 16 November 2021 in response the review applicant provided the following documentation: two pay slips dated 10 November 2021 and 27 October 2021 showing an annual salary of $114,524.81AUD (excluding a higher qualification allowance of $4,732.00AUD) equating to a total income per annum of $119,256.00AUD; a letter from the review applicant’s employer Mercy Health dated 14 September 2021 confirming she is a permanent employee and has been employed since 1 July 2017; two Commonwealth Bank of Australia transfer payments confirming the review applicant’s payment of the visa applicant’s Bachelor of Nursing fees in Poland; a statutory declaration dated 10 September 2021 by the review applicant declaring that she will assume responsibility for the visa applicant’s university fees, accommodation and all expenses whilst he studies in Poland; a letter from Vincent Pol University dated 16 November 2021 confirming receipt of payment of the visa applicant’s tuition fees and that the visa applicant has commenced his Bachelor of Nursing studies and has a winter break scheduled between 22 December 2021 and 7 January 2022; and a screenshot from an immigration consultant agency in Zimbabwe advertising studying nursing in Poland, which states the qualification is recognised internationally and an internet link containing various advertisements and broadcasts by a radio channel in Zimbabwe, including Star FM hosting representatives from Vincent Pol University discussing their affiliation with Zimbabwe and encouraging Zimbabwean students to study nursing at the University.

15. 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.

16. The visa applicant is a 38-year-old citizen of Zimbabwe. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

17. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 3 January 2020 and a departure date of 31 January 2020.

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)).

19. 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.

20. 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.

21. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal is also satisfied that the visa applicant will not undertake any study, given his current enrolment at Vincent Pol University in Lublin, Poland. The Tribunal also accepts that he will be accommodated and financially supported by the review applicant during his stay in Australia, including the review applicant covering the visa applicant’s air flight expenses. The review applicant gave evidence of being a registered nurse and provided various financial evidence in support which the Tribunal accepts.

22. The Tribunal is also satisfied that the visa applicant intends to comply with conditions 8503 and 8531 which are discussed below 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.

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

24. Firstly, the Tribunal has considered the purpose of the visit. The visa applicant gave evidence that the purpose of his travel is to visit his sister and her two children currently aged seven and 12 years who reside in Victoria, Australia. The visa applicant stated he wished to visit his sister to provide support, due to the recent breakdown of her marriage which occurred in March 2021 and the sudden death of their mother on 22 January 2021. He stated it had been a difficult time for the review applicant due to there being no other family members who reside in Australia to provide care and support. Further, their mother was the only relative who would visit the review applicant in Australia and now that she is deceased, the review applicant would like the visa applicant to visit.

25. The review applicant gave consistent evidence, adding that she had not seen any of her siblings since 2012, when she returned to Zimbabwe and that 2021 had been a terrible year for her, due to the breakdown of her marriage and the death of her mother. She explained that she was unable to return to Zimbabwe to attend the funeral due to the COVID-19 pandemic and border restrictions. The Tribunal understands that the review applicant also has the emotional and financial burden of raising two young and dependent children on a single income and wishes to see her brother. These are valid reasons to apply for a visitor visa to Australia.

26. The visa applicant stated when he originally applied for his visa he had the flexibility of being away for approximately two to three months, however due to his current nursing studies, he was more limited and would travel during his university break. The review applicant gave evidence of the same, stating when she applied for the visa the plan was for him to stay for approximately two months, but that any future travel would depend on his study commitments and he would travel during his university vacation. The review applicant provided evidence of the visa applicant’s university holidays and the Tribunal accepts that the visa applicant plans to stay short-term in Australia.

27. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside Zimbabwe. The visa applicant stated he has travelled to South Africa on two occasions and provided a copy of his passport showing country stamp entry and exit dates on 12 September 2021 and 3 October 2021 and 13 October 2021 and 14 October 2021. The purpose of this visit was to facilitate obtaining his Polish passport. The visa applicant also stated he has travelled to Poland arriving on 15 October 2021 where he has remained until the date of this decision. The purpose of his visit to Poland was to commence his nursing degree.

28. The Tribunal accepts that the visa applicant has undertaken the above travel. However, the Tribunal does not accord compliance with visas during this travel with significant weight, due to the short duration of travel to South Africa and due to his visit to South Africa being for administrative purposes, namely obtaining his Polish passport. The Tribunal places limited weight on his travel to Poland given his recent arrival in Poland and the fact that it is yet to be seen whether the visa applicant complies with his current student visa which is valid until 14 September 2022.

29. The Tribunal Member enquired as to why the visa applicant had embarked on a nursing degree late in life and why he had chosen to undertake it in Poland, as opposed to a university in Zimbabwe or South Africa.

30. The visa applicant stated he decided to make a career change to provide his family and him with financial and employment security, particularly in light of the COVID-19 pandemic which has closed many industries in Zimbabwe. He chose a course in Poland, due to there being limited nursing courses in Zimbabwe, the courses in Zimbabwe being expensive and he regarded the Zimbabwe courses as substandard. In contrast, he stated his course and university in Poland was highly reputable and the tuition fees were much cheaper, including being less expensive than any nursing course available in Australia. After finishing his course he stated he would have an internationally recognised degree from which he could commence a nursing career in Zimbabwe. He also stated that the cost of living in Poland was more affordable than Australia. He explained that he had always had a desire to become a nurse, but due to his high school marks and financial impediments, he resorted to doing ‘odd jobs to make ends meet’. He explained the review applicant has provided him with a new career opportunity and paid for his university course and accommodation.

31. The Tribunal Member asked the visa applicant’s about his current migration status in Poland. The visa applicant explained that he is currently on a student visa until 14 September 2022, as a result of being accepted into a Bachelor of Nursing in Lublin Poland at the Vincent Pol University which he commenced on 1 October 2021. He planned to apply for a temporary residence visa in January or February 2022 which will be valid for three years and allow him to complete his degree by September 2024. He stated his course is taught in English, with there being a separate basic Polish learning course. The review applicant gave evidence of the same and provided to the Tribunal various enrolment and financial documents in support. The Tribunal accepts that the visa applicant is undertaking a nursing course for the reasons detailed by the visa applicant and review applicant.

32. Thirdly, the Tribunal has taken into account the incentives to return to Zimbabwe at the end of his proposed visit. The visa applicant stated that all his family reside in Zimbabwe, save for the review applicant and one sister who resides in South Africa. The visa applicant stated he has a defacto spouse, who he has been in a relationship with since 2015 and has three sons aged between seven and 14 years of age. In support he provided a copy of his sons birth certificates. He also stated he has two brothers, two sisters and various aunts, uncles and cousins. The visa applicant’s parents are both deceased.

33. The Tribunal Member noted that each of the children had different mothers and two of his sons were born within two months of each other, indicating the visa applicant had simultaneous relationships with two different women, one of which is the visa applicant’s current spouse. The Tribunal Member queried whether he was in fact in a committed relationship and whether he had contact and custody of the children and whether he provided them financial support.

34. The visa applicant gave evidence that he has custody of all three sons and financially supports them. His current defacto spouse is the mother of one of his sons aged seven and has assumed care of his two other children who she has raised from a young age and treats them like her own. He stated that the mother of his eldest son abandoned him when she remarried and that he assumed sole care of his eldest son. He also explained when he originally met his current spouse, she was not amenable to marriage and admitted to having another relationship which produced a child currently aged seven, but that the mother died not long after giving birth. The visa applicant maintained that he was in a committed relationship with his defacto partner and is a committed father to his three sons.

1. The Tribunal Member queried how his family constituted an incentive to return when he has relocated to Poland to study for three years. The visa applicant replied that he would return to Zimbabwe during his university holidays and maintained regular communication with them via different social media and communication applications. The Tribunal Member raised the above concerns with the review applicant who gave consistent evidence. The review applicant also stated that she was prepared and would pay for the visa applicant’s return to Zimbabwe and that he would not continuously remain in Poland. The Tribunal accepts the visa applicant and review applicant’s evidence. The review applicant presented as a very honest and credible witness. The Tribunal places some weight on the visa applicant’s remaining family as an incentive to return to Zimbabwe after his visit to Australia.   

2. The visa applicant stated prior to moving to Poland he resided in his mother’s home in Norton Mashonaland, in West Zimbabwe where his defacto and three children remain. The review applicant claimed that the review applicant has inherited her mother’s property. The Tribunal understands that the estate is yet to be distributed and had been delayed due to COVID-19 restrictions. The review applicant maintained her other siblings were not beneficiaries and that they all have their own properties and lived further away. Although no will was produced, the Tribunal places some weight on the fact that the visa applicant will inherit his mother’s property, or at least a portion of it, given the visa applicant’s mother is deceased, the fact that there is an estate and property to be bequeathed and accepts the oral evidence of the visa applicant and review applicant.

3. The visa applicant does not own a motor vehicle. The visa applicant stated that he does not keep any savings in the bank due to not trusting the banking system due to ‘hyperinflation’.  The review applicant gave evidence of the same adding that the government of Zimbabwe keeps changing the currency and that there was bad inflation. There is no evidence of any savings and therefore no weight can be placed on any cash holdings.

4. The visa applicant is currently unemployed, being financially supported by the review applicant. Prior to migrating to Poland, he had been a wielder and boiler maker since 2010. During this employment he built trailers and mechanically repaired motor vehicles. He however stated that he and his partner operate a chicken business selling eggs and chickens for meat which his partner has continued to operate during his absence. He referred to his chickens as ‘layers’ and said that it provided an income. His defacto partner also works as a cashier selling magazines and newspapers. The review applicant gave consistent evidence. Given the visa’s past involvement in the chicken busines and the fact that it derives some income, the Tribunal places some weight on the busines as an incentive to return to Zimbabwe.

5. The review emphasised that her family had a good migration record and that if the visa applicant did not comply with his visitor visa conditions, not only would it compromise the visa applicant’s future ability to travel to Australia, but that it would jeopardise the review applicant’s ability to sponsor future family members and therefore the visa applicant has a very strong incentive to comply. She stated that she has an intention to sponsor other siblings including her sister to visit Australia. She also stressed that her family were law-abiding citizens and have obeyed Australia’s migration laws. This included the review applicant’s mother who travelled to Australia various times. She stated her brother had a stronger incentive to return than her mother, as when her mother travelled, she was a widower with her husband dying in 2004, whereas the visa applicant has a wife, children and property.

6. After the hearing, the Tribunal Member obtained the travel movement records of the review applicant’s mother. These records corroborate the review applicant’s evidence which show that the review applicant’s mother travelled to Australia on four previous occasions and complied with the conditions of her all four visitor visas. The Tribunal accepts the review applicant evidence and places significant weight on the fact that the review applicant’s family have complied substantially with the conditions of other visas which may be a relevant consideration for cl 600.211(c).

7. The review applicant also stated that the visa applicant would not overstay, as her brother intended to finish his nursing studies which she has paid for and that her brother would not want to cause her financial hardship in not returning to Poland to complete his studies. The Tribunal found these submissions to be highly persuasive.

8. The review applicant stated that she would be prepared to lodge a security bond in the sum of $10,000.00 AUD.

9. The Tribunal has also taken into account the situation of a visa applicant’s home country, Zimbabwe, which may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which states that Zimbabwe’s economic and political environment has deteriorated over the past couple of decades, with it having a 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 to return. [1]

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

10. In response, the visa applicant acknowledged that hyperinflation and the economy in Zimbabwe was not good, but that he has learnt to live with it and always exploited available opportunities. He maintained that he would return to be with his partner, children and family and commence work as a nurse in Zimbabwe and have job security. The review applicant agreed that the economic situation in Zimbabwe was bad, but maintained that the visa applicant would return, due to him having career prospects as a nurse, a family and a chicken laying business. She also stated that these economic conditions were ‘nothing new’ and that they have happened for the last two to three decades. She also stated that the visa applicant had migration opportunities and could have migrated to other countries, including South Africa like her sister, but had chosen to remain in Zimbabwe.

11. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in Zimbabwe due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Christian and from the majority Shona ethnic group which makes up 82% of Zimbabwe’s population. The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicant’s evidence.

12. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including him having a valid reason to visit Australia. Although the visa applicant has undertaken some travel, the Tribunal does not accord significant weight to this travel, given he travelled to South Africa for a short time and for administrative purposes to obtain his passport and given it is too premature to determine whether the visa applicant will comply with his Polish visa due to his recent arrival.

13. The Tribunal places some weight on the presence of the visa applicant’s partner, three children and family large network in Zimbabwe as an incentive to return. In contrast the visa applicant has very limited family in Australia, namely the review applicant and her two children. The Tribunal also places some weight on his chicken business which derives revenue and which he has helped operate in the past. The Tribunal also places some weight on the fact that the visa applicant is the beneficiary of his mother’s estate and will inherit her property or at least portion of it. The Tribunal has also considered the migration history of the review applicant’s family and places significant weight on the substantial compliance with previous visitor visas.

14. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that he returns to Zimbabwe before the expiry of his visa due to financial hardship in losing a security bond caused to his sister, as well as adverse implications for future visa applications to Australia. The Tribunal also accepts that if the visa applicant failed to return to Poland to complete his studies, that this would cause financial hardship to his sister who would waste her money on the visa applicant’s nursing degree and associated expenses in Poland. The Tribunal accepts the visa applicant and review applicant’s evidence that the visa applicant has an intention to return to Poland to complete his studies and will then return to Zimbabwe.

15. The Tribunal is satisfied that even though there are economic problems and hyperinflation in Zimbabwe, that this would not act as a disincentive to return and that the visa applicant does not have any fears of persecution. The review applicant also presented as highly reliable and credible witness. 

16. 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

17. 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.

    Naomi Schmitz
    Member