1513241 (Migration) [2016] AATA 3508 (9 March 2016)

Last Updated: 4 April 2016

1513241 (Migration) [2016] AATA 3508 (9 March 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Simangele Dlodlo

VISA APPLICANT: Ms Stenie Dhlodhlo

CASE NUMBER: 1513241

DIBP REFERENCE(S): BCC2015/2436738

MEMBER: Melissa McAdam

DATE: 9 March 2016

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 09 March 2016 at 4:13pm

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 14 September 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
2. The review applicant was represented in relation to the review by her registered migration agent.
3. The visa applicant applied for the visa on 23 August 2015. 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.
4. 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.
5. The visa applicant provided the following information in her visa application:
   1. The visa applicant is a 66 year old Zimbabwe woman from Harare in Zimbabwe.
   2. She wished to travel to Australia between 10 September 2015 and 10 December 2015.
   100. She has two adult daughters and an adult son in Zimbabwe.
   4. The review applicant is her daughter. She is an Australian citizen.
   5. The review applicant has been employed since 4 December 2006 at the RPAH as a registered nurse.
   6. The review applicant will cover all the costs of the visa applicant’s visit.
   7. She submitted a copy of her Zimbabwean passport.
   8. She submitted a copy of the review applicant’s birth certificate and her bank statements and pay slip
6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the presence of the visa applicant’s family members in Zimbabwe was not sufficient to persuade him she would return home, and because she did not declare that she had previously been refused a Tourist visa to Australia.
7. On 3 March 2016 the review applicant submitted the following further evidence to the Tribunal:
   1. Copy of an Affidavit by ‘Nemi Muzenda’, dated 15 July 2011, that she has sold a two room house to the visa applicant.
   2. Copy of a Building inspection Form in the visa applicant’s name stamped by the Gokwe Town Council revenue Section on 23 September 2014.
   100. Copy of a Bill Statement regarding rate charges for the visa applicant’s property.
   4. Copy of Receipts in the visa applicant’s name for rate payments and building inspections, from the Gokwe Town Council.
   5. Copy of receipts and school fee Statements for the visa applicant’s two grandchildren, from Cheziya High School, bearing the same address as the visa applicant’s home.
8. The review applicant’s migration agent also provided a written submission to the Tribunal on 3 March 2016, which in summary states:
   1. The visa applicant’s expressed intention is to visit her daughters and grandchildren in Australia.
   2. The review applicant is willing to pay whatever security is required for the visa applicant to be granted a visa.
   100. The visa applicant owns a house and farm in Zimbabwe and does not need or intend to work in Australia given her age and lack of English.
   4. The visa applicant’s son works the visa applicant’s farm which generates income for her. She lives a comfortable life in Zimbabwe.
   5. The visa applicant previously applied for a visitor visa which was refused. The review applicant completed the visa application form and read the relevant question incorrectly so answered it incorrectly. As it is written on the form, with two discrete questions but only one answer field, the question is confusing. There was no intention to provide false or misleading information. It is clear DIBP hold the records of the visa applicant’s previous visa application.
   6. The visa applicant has a stable life in Zimbabwe. She has bought land with a cottage and is finalising a new six bedroom house next to the cottage on the land. She has a big family in Zimbabwe. One of her daughters is working in South Africa so her two children are living with the visa applicant who is looking after them. The visa applicant is not subject to persecution or discrimination in Zimbabwe. The review applicant has sufficient funds, access to more than AUS$45,000, to support the visa applicant during her visit to Australia.
9. On 8 March 2016 the review applicant submitted the following further evidence to the Tribunal:
   1. Copy of the review applicant’s Commonwealth Bank account Statement showing a closing balance as at 21 October 2015, of approximately $46,000.
   2. Copy of the review applicant’s sister’s Westpac Bank account Statement showing a closing balance as at 31 December 2015 , of approximately $21,000.

CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal takes the view that there is sufficient information before it to proceed to decision without holding a hearing.
11. 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.
12. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughters and grandchildren in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
13. 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 Tribunal notes that there is no record of the visa applicant ever holding a substantive visa or subsequent bridging visa. The Tribunal therefore finds there is no previous history of compliance or non-compliance by the visa applicant.
14. 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.600.611(3)):
    • 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.
15. The visa applicant is a 66 year old woman from Zimbabwe. The Tribunal accepts that she will be accommodated and supported by her daughters while she is visiting Australia. The Tribunal also accepts that she does not speak English. In view of these circumstances and the visa applicant’s personal situation the Tribunal considers there is no indication the visa applicant wishes or needs to work while in Australia. The Tribunal is therefore satisfied the visa applicant intends to comply with condition 8101.
16. There is no evidence or indication before the Tribunal that the visa applicant wishes to study in Australia and the Tribunal is satisfied the visa applicant intends to comply with condition 8201.
17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).
18. The Tribunal considers that the visa applicant has demonstrated strong family and property ties to Zimbabwe. The Tribunal accepts that she owns house, land and farm in Zimbabwe. She has a home and income from her farm which her son operates. The Tribunal accepts she is in the process of having a large house built upon her land. She has three of her children as well as grandchildren in Zimbabwe with some responsibility for the care of her grandchildren.
19. The Tribunal accepts the visa applicant has a comfortable life in Zimbabwe without harm or security concerns.
20. The Tribunal accepts the argument that as a 66 year old widowed woman with no English language skills, who has lived all her life in Zimbabwe, with most of her family in Zimbabwe, the visa applicant is not likely to wish to remain in Australia otherwise than for a temporary visit. The Tribunal considers that the visa applicant’s family ties, property ties, and established life in Zimbabwe, represent strong incentive for her to return there.
21. While the Tribunal accepts there may be some wish for the visa applicant to stay past her visiting period to continue to be with her daughters and grandchildren in Australia, it considers that this concern is outweighed by the visa applicant’s need and wish to return to her other family, properties and familiar life in Zimbabwe.
22. The Tribunal finds the review applicant and her sister have presented acceptable evidence they can comfortably support the visa applicant during her visit to Australia. 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 her visa.
23. In sum the evidence before the Tribunal does not indicate that the visa applicant wants to visit Australia for any purpose other than a genuine temporary stay to visit her daughters and grandchildren here.
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.

Melissa McAdam
Member