1510334 (Migration)

[2016] AATA 3142

1510334 (Migration) [2016] AATA 3142 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr RAMZY MIKHAIL

VISA APPLICANTS:  Mrs Salwa Ramzy YOUSSEF
Mr Badie Badie Mikhail Tadrus

CASE NUMBER:  1510334

DIBP REFERENCE(S):  BCC2015/1325088

MEMBER:Christian Carney

DATE:29 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas 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 29 January 2016 at 4:48pm

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 22 May 2015 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 7 May 2015.  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.600.211, which requires the visa applicants to satisfy the Minister that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The delegate refused to grant the visa on the basis that the visa applicants did not meet cl.600.211 as the delegate was not satisfied they genuinely intended to stay temporarily in Australia for the purpose of visiting family.

4. The review applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. 

   Issue for determination

5. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether they have complied substantially with the conditions attached to the last substantive visa they held; whether they intend to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Information about the visa applicants

6. The visa applicants are a married couple from Cairo, Egypt.  He is a 66 year old retired Engineer who worked for the Egyptian government and she is a 62 year old homemaker housewife.  They are Coptic Christians and have two adult children.  Their son, the review applicant, migrated to Australia in 2007 and is now an Australian citizen.  Their other son resides close by in Cairo with his wife and two young children, and they are closely involved with the lives of their family in Cairo.  They have no health issues or medical conditions.   

7. They applied for the visa to visit the review applicant and his wife and family for a period of time in between 1 July 2015 and 31 August 2015.  They provided a copy of the details pages of their passports and a statement from the Passports, Immigration & Naturalisation Authority that neither applicant had left Egypt during the previous 10 years (in Arabic with English language translations).  They also provided a copy of the review applicant’s Australian passport and his Certificate of Australian Citizenship, his Egyptian Birth Certificate (in Arabic with English language translation), which lists the visa applicants as his parents, and two ANZ bank account statements indicating a total current balance at 4 May 2015 of about A$40,000.  They also provided a copy of statutory declaration made by the review applicant on 5 May 2015, which confirms his intention to sponsor his parents visit to Australia and that he will cover the costs of their travel and stay in Australia.   

   Reasons the delegate refused the application

8. The delegate had concerns about the visa applicants’ true intentions because they were retired and had not provided sufficient evidence of past travel or their financial situation, and, in light of the poor economic and security conditions in Egypt and the higher than average non-return rate of Coptic Christians granted Visitor visas, the delegate was not satisfied that there was sufficient incentive for the visa applicants to leave Australia at the end of the visa or to abide by the conditions of the visa. 

   Written evidence from the review applicant

9. The review applicant gave the Tribunal a copy of the delegate’s decision, a statement addressing the reasons for the delegate’s refusal decision and a copy of documents evidencing his parents’ ownership of an apartment in Cairo and a limousine.  In his statement, the review applicant contends that the delegate took into account irrelevant information and failed to pay proper regard to relevant information.  He contended that his parents lack of travel history should not be used against them, nor should their religion, and that, had the delegate considered current information about the situation in Cairo, he would have come to the view that his parents are not at risk of persecution.  Further, his parents have strong ties to Cairo, with them both having a number of siblings and cousins whom they are close with, and that, more relevantly, they are closely involved with his brother’s life and provide care, support and assistance with their two grandchildren to assist his brother and sister-in-law work.  His parents have no intention of remaining in Australia, and, were it not for his presence, would otherwise have no intention of coming here.  He will ensure they leave before the end of the visa period. 

   Hearing on 21 January 2016

10. The review applicant attended a hearing and gave evidence in support of the application.  He confirmed the details of the information and evidence he and his parents had given to the Department and to the Tribunal, including with regard to his employment and financial situation, and his family membership in Australia and Egypt.  He confirmed the details of his father’s past work and retirement, and their current circumstances in Cairo, including that they had nor experienced in problems in Cairo and are not at risk of harm from any person or persons.  He had been trying to convince his parents to travel to Australia and visit him for years, but his father had always refused, but he was finally able to persuade his father to come last year.  His parents have no intention to remain in Australia beyond the permitted period and will comply with the conditions of the visa.  He is aware that, if his parents breach the conditions, that would affect any future applications of other family members, including his brother and sister-in-law, and his wife’s family, who are also in Cairo.  If necessary, he will provide a security bond to ensure their compliance. 

    Consideration and assessment

11. On the evidence before it, the Tribunal accepts that the visa applicants and review applicant are parents and son, and that the visa applicants seek the visa for the purposes of visiting their son and his family in Sydney, which is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.221.

12. 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)).  However, the evidence indicates that neither visa applicant has ever travelled outside Egypt, but does indicate that the review applicant has a compliant migration history in Australia, which supports their application. 

13. 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 which a visa in the circumstances of this case would be subject include (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.

14. The evidence before the Tribunal indicates that the visa applicants are a retired couple who own the apartment they live in in Cairo, and have the support of their two adult children.  On the evidence before it, the Tribunal accepts that the review applicant and his wife have the means to provide full financial support to the visa applicants while they are here and that they will not need to and do not intend to work while they is here.  There is no evidence or indication that they wish or intend to study or participate in any training course in Australia.

15. With regard to other relevant matters, the evidence before the Tribunal indicates the visa applicant are Coptic Christians who lead a comfortable, middle class existence in Cairo, and that the review applicant and his wife have a similar set of circumstances in Sydney, and that the applicants maintain a close familial bond.  The review applicant gave his evidence in a straightforward and direct manner and there is nothing to contradict his statements that his parents have strong ties to Egypt and do not wish to visit Australia other than for a genuine temporary stay to visit him and his family here.  While the presence of their son and daughter-in-law may present a reason for them to stay longer in Australia, they also have a son and daughter-in-law in Cairo and two young grandchildren who live in close proximity and for whom they provide regular care and support to, as well as numerous siblings and other relatives with whom they remain in close contact with. 

16. With regard to the situation generally for Christians and Copts in Egypt, the information before the Tribunal indicates that the political and security conditions in Egypt have undergone significant changes since late 2013, and that the situation for the Coptic community generally has improved.[1]  In its ‘Thematic Report: Egyptian Copts’ of 24 November 2015 report, DFAT advised that the day-to-day life for most Copts in Egypt is not overtly affected by sectarian differences, and most Egyptians - especially those living in cities and urban areas - work, live and socialise together with little regard to each other’s religious identity.[2]  DFAT noted that Coptic contacts have reported a general sense of optimism in the Coptic community about their future following the removal of President Morsi in July 2013, though they have also expressed lingering concerns about further attacks by radical Islamist groups, and that, despite a pervasive prejudice against Copts in the community, most Copts live peacefully with their Muslim neighbours - this is especially the case in urban centres.  Overall, DFAT assesses that Copts are generally at a low risk of personal harm from sectarian violence, especially in middle class urban centres.  While the visa applicants are both Coptic Christians, the evidence before the Tribunal does not indicate that either of them has experienced any particular issue or problem in Egypt for reasons of their religious beliefs or practice, or any other matters, and that they appear to lead a typically middle class existence in Cairo, free from any sectarian or other problem, and, on the evidence before it, the Tribunal considers there is no credible reason to consider that they would not want to return to Egypt prior to the expiry of their Visitor visas. 

    [1]     See ‘Thematic Report: Egyptian Copts’, DFAT, 24 November 2015 at 2.12, 2.20 and 3.36. 

    [2]     See ‘Thematic Report: Egyptian Copts’, DFAT, 24 November 2015; ‘Egypt: Background information, including actors of protection and international relocation’, UK Home Office, May 2015. 

17. The Tribunal also discussed at some length with the review applicant the implications of sponsorship and consequences of non-compliance with visa conditions on the sponsor.  The sponsor indicated that he understands the obligations of sponsorship and is prepared to provide a financial security of up to $20,000 and has available funds to do so.   He is keen to maintain a good record so that he can sponsor other relatives in the future.  While he has no immediate plans to sponsor anyone, he may wish to sponsor his sibling and his family, or his parents again at some later time.  The Tribunal is satisfied that both the visa and review applicants are aware of the obligations of sponsorship and consequences of non- compliance and it accepts that the consequences of visa non-compliance for the sponsor provide an additional inducement for compliance with visa conditions. 

18. Having carefully considered the evidence as a whole, the Tribunal is satisfied that the visa applicants want to visit Australia for the genuine reasons and not for a purpose other than a genuine temporary stay to visit his son and daughter-in-law.  For these reasons, the Tribunal is satisfied that he 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

19. 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.

    Christian Carney
    Member