1709641 (Migration)

[2017] AATA 3034

1709641 (Migration) [2017] AATA 3034 (8 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709641

MEMBER:Angela Cranston

DATE:8 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 08 December 2017 at 4:49pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family Stream – Strong personal ties in Australia – Change of status onshore – Discrimination faced by Christians – Political and security situation

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 [in] April 2017 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 [in] March 2017. 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.    In their applications, the visa applicant stated they were married, in Assuit Egypt, were aged in their [ages] and, had [children] in Egypt aged between [ages].

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 delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211. In relation to the first named applicant, the delegate stated as follows:

I have noted that the sponsor’s birth certificate indicates that the applicant is Christian, a known targeted minority group. Departmental records indicate that the incidents of Egyptians from similar backgrounds who attempt to change the status while in Australia is high.

I note the applicant’s family links to Australia, including the circumstances surrounding their arrival and ongoing residence and noting his ties to Egypt. I am not satisfied that there is significant incentive for him to depart Australia at the expiry of any visitor visas that might be granted.

I note that the applicant is an Egyptian passport holder. In these circumstances, the environmental factors in his home country, Egypt are relevant to an assessment of his claims. Recent reports indicate that Egypt faces a high threat of terrorist attack and a number of terrorists attacks have occurred since December 2016 including the recent attacks in Mar Guirgis (St George’s) church in Tanta and outside the Morkoseya (St Marks) Church in Alexandria in April 2017. Egyptian security forces have identified further terrorist activity around the country.

I have taken into consideration country information published by the Australian Department of Foreign Affairs and Trade and also other publicly available information on the civil and political situation in Egypt.

I have considered the movement stamps in the applicant’s passport indicate that he has travelled to [three countries] and departed within the validity of his visas. While I accept that the applicant’s compliance with those visa conditions under other circumstances may indicate that is likely to comply with the conditions of this visa, I give this previous travel limited weight as evidence that the applicant intends a genuine temporary stay since he has close family ties to Australia and he did not have these to those countries.

The applicant’s family ties to Egypt are limited to non-dependent relatives, [adult] children. I acknowledge that these family members in Egypt may offer some incentive to return however it appears they are financially independent and have other family members in Egypt.

I accepted under normal circumstances the applicant’s family links in his home country may constitute an incentive to return there after a visit to Australia. However the prevailing political and security conditions in Egypt constitute a very strong disincentive to return there. Additionally the applicant’s family links in Australia constitute a very strong incentive to remain in Australia. On balance I believe that the applicant has more incentives to remain in Australia than to return to Egypt.

6.    In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant, their son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

7.    The delegate essentially stated the same reasons in relation to the second named applicant but also noted she was [Occupation 1] with three months leave to travel.

8.    Prior to hearing, the Tribunal received a submission dated 29 November 2017 that said the applicants had more close family members in Egypt than in Australia including the second named applicant’s father named [name] aged [age] years, siblings, cousins, uncles and aunts, that the applicants’ owned residential property, were joint-owners of a commercial building, joint owners of a vacant parcel of land and co-owners of a second vacant parcel of land.  The submission also stated the following:

The applicant in question cannot be presumed to be applying for a temporary visa with the intention to breach its conditions merely because their country of origin is experiencing political instability. It is also wrong to state that the economic and domestic situation in Egypt has deteriorated to the point where the majority of Egyptian visitors to Australia must be refused a visa for fear of them staying illegally beyond the conditions of their respective visa types. The area where the applicant lives in is a highly affluent and safe area for Christians and the applicant has not experienced any ill treatment.

Although there have been many reports highlighting the instability in Egypt’s after the removal of Mohammed Morsi in 2013, it would be wrong to say that Egypt is comparable in terms of instability to other nations in the region such as Libya, Yemen and Syria. After the removal of Mohammed Morsi the stated goal of the Egyptian government has been to restore the country to stability. Many sources indicate that Egypt has been gradually making progress towards such stability, despite the presence of some harsh security measures and instances of violence. The security measures put in place by the Egyptian government have largely been for the purpose of ensuring stability in the country. This is especially important considering the instability in the Sinai.

Egypt has a functional government that is able to guarantee security for its citizens to a far greater degree than several other nations in the region, for example Libya, Yemen and Syria. Unlike the situation in Libya and Syria, the Egyptian government and military has largely been able to contain terrorist activity in Egypt. This is seen in how the only active war zone in the country is the Sinai Peninsula, where affiliates of the IS group operate.

Egypt has also demonstrated the ability to assist other nations in the region having taken part in military operations in Libya and Yemen. The fact that Egypt is able to provide such assistance in foreign conflicts can be seen as proof that Egypt is not in the same dire situation in terms of domestic security as other nations in the region. It is therefore important to recognise that the Egyptian citizen would be much more willing to abide by the provisions of a temporary visa return to their country of origin as opposed to citizens of many other countries in the region.

Furthermore it should be recognised that Egypt is not as much of a source of refugees and asylum seekers compared to other nations in the Eastern Mediterranean and Middle East. Egypt is not mentioned as a major source of refugees in UNHCR statistics, despite it being one of the most populous countries in the region. Furthermore the UNHCR reports that as of 2015, Egypt is the third highest recipient country of new applications for refugee status through the UNHCR. The UNHCR also does not list Egypt among the top 51 source countries of refugees since 1980.

It is also important to examine the reasoning of the Department of Immigration, which focused on several domestic security concerns in Egypt from the Department of Foreign Affairs and Trade website. The Department of Immigration saw these security concerns as disincentives for the applicant in question to return to Egypt. It is important however to note that a significant proportion of the risks listed on the DFAT website involve the safety of tourists, the safety of journalists, or the safety of those travelling in the Sinai Peninsula war zone. The applicant is not a tourist, not a journalist, and does not live in Sinai. It is therefore more likely that the disincentives listed by the Department of Immigration from DFAT are not as relevant to the applicant as may otherwise be the case.

From an economic standpoint, Egypt has improved substantially....

Furthermore, a follow-up IMF report from September 2015 has detailed several improvements in line with the aforementioned forecasts…

Reports from the World Bank also indicate the Egyptian government’s commitment to improving the situation in the country in the aftermath of the leadership crisis. For example, the World Bank focuses on how the Egyptian government has restored macroeconomic stability by moving away from universal subsidies towards a more targeted transfer program, taking measures to contain the wage bill increasing tax revenues.

Aside from pure economic improvements, the World Bank indicates that the Egyptian government has also embarked upon significant development projects. These projects have largely been guided by the World Bank itself through the country partnership framework 2015/2019. Egyptian consultations with the group have led to significant development projects in rural areas, including energy and infrastructure…

To summarise the submissions, the applicant has:

·     [Third named applicant] has steady, long-term paid employment spanning for over 21 years, whereas [the second named applicant] has been receiving a yearly pension allowance equivalent to [an amount] per annum

·     adequate savings in financial support from the sponsor to support their proposed stay in Australia

·     many more close relatives in Egypt than does in Australia

·     four high value properties in Egypt’s

·     genuine reasons for wanting to travel to Australia and

·     no desire or need to work or study in Australia.

We submit that:

The personal circumstances of the applicant(s) constitute a strong incentive for them to return to Egypt upon the expiration of any visitor visa granted to them;

The political and economic situation Egypt, to get in the area the applicant lives has improved significantly over the preceding 2 to 3 years, and this constitutes a further incentive for the applicant to return to Egypt upon the expiration of any visitor visa.

9.    The review applicant appeared before the Tribunal on 6 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

1. The review applicant was represented in relation to the review by his registered migration agent.

2. The review applicant stated the problems in Egypt were not everywhere and the applicants were in Assuit which was 60-70% Christian where there were no problems and that all the problems were in the border areas. The review applicant also stated his grandfather who was [age] lived with the applicants who also had [a number of] siblings between them and those siblings also had children and so it was very big family.  He also said his [brother] was still in college.

3. The review applicant stated the second named applicant worked as [Occupation 1] and would not leave her job, [workplace] or church. He stated the first named applicant also had a lot of things to do, that is he owned land and was building on it. He stated he had previously built a [property] in Alexandria and was going to build another [property].

4. The review applicant stated he had [number of] siblings one of whom was still studying.

5. The review applicant stated he applied for a refugee status on the basis that he had been converting Muslims to Christianity but that reason did not apply to the applicants who had not tried to convert people.

6. The review applicant stated the first named applicant was retired whereas the second named applicant still worked.

7. The Tribunal put to the review applicant that the Department of Foreign Affairs and Trade had said that Egypt had experienced a major decline in law and order since 2011 which had led to an increase in violent crime, civil unrest and terrorist attacks, that the Sisi government’s strong emphasis on internal security had restored general law and order throughout most of Egypt but that since December 2016 Islamic State had claimed responsibility for a series of major attacks against Coptic Christian churches. The Tribunal put to him that DFAT had said that mostly Egyptians lived peaceful lives but that neighbourhood disagreements could on occasion adopt religious overtones and escalate into community level violence particularly in poorer and rural areas and that while Egyptian authorities were committed to preventing communal violence, communal violence was likely to continue especially in Upper Egypt and Minya and discrimination against Christians was likely to occur especially in rural areas. The review applicant stated the violence was during the revolution and now there was nothing of the sort. He stated that the subject of churches was in every country and not just Egypt. He also stated a mosque in Al Arish had recently been bombed and people had been killed and it was not only the churches that were targeted. He also stated the problem was between the government and the terrorists and they were putting pressure on the Christians so that Sisi would leave. He also said all the problems were far from where they lived and there were no problems in Assuit which was a commercial area.

8. The review applicant stated he was willing to provide a bond of up to $20 000.

9. The Tribunal then spoke to the applicants. The first named applicant stated that he would return to Egypt because he had buildings, work and salaries to pay. He stated he was an [occupation] but had taken a pension. He stated he was currently building [in] Assuit, and he also received rent from [an Alexandria property]. He also stated he had family in Egypt and had to return to them. He also stated he was [an occupation] for buildings in Assuit, his son was studying [a subject] and he had to go back to him. He also said he had travelled to other [countries].

10. The Tribunal then spoke to the second named applicant who stated she was [an Occupation 1] and committed to [her job]. She also stated she was committed to her son and also cared for her [age] year old father. She also stated she would go back to Egypt because of her family who were gathered in one place. She stated at her age she would not live away from or leave her country. She said she wanted to see Australia, the applicant and his wife as well as her grandson. She also stated she was committed to Egypt and her family in Egypt.

11. The adviser stated that the first named applicant was only semi-retired as was still working and developing his land.

Country Information

1. According to the Department of Foreign Affairs and Trade Country Information Report Egypt 19 May 2017:

Security Situation

Egypt experienced a major decline in law and order in the wake of the 2011 Revolution, leading to a sizeable increase in violent crime, civil unrest and terrorist attacks. The Sisi Government’s strong emphasis on internal security has largely restored general law and order throughout most of Egypt. Large-scale ongoing protests such as those experienced in 2011 and 2013 have declined considerably (see ‘Critics of the State’).

Egyptian security forces have been engaged since 2013 in a military conflict with Islamic State-affiliated militant Islamists in North Sinai province. Although authorities have tightly controlled reporting from the area, it is apparent that a significant number of security forces, militants and civilians have been killed in the conflict. The province has been under a state of emergency since October 2014.

Terrorist attacks have occurred regularly since the 2011 Revolution, and have primarily targeted security personnel and facilities. Recent attacks of this nature include a bombing in Giza in December 2016 that resulted in the deaths of six security officers, and an attack on a security checkpoint in New Valley governorate in January 2017 in south-west Egypt that killed eight police officers and injured three others.

Since December 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches (see also Religion – ‘Christians’). On 11 December 2016, an Islamic State suicide bomber targeted a church service in Cairo, killing 29 and injuring 49. On 19 February 2017, a group calling itself ‘IS Egypt’ released a video calling for the targeting of Coptic Christians. Two major attacks against Palm Sunday church services occurred on 9 April, both claimed by Islamic State. The first attack occurred in Tanta, killing 27 and injuring over 70. The second occurred at St Mark’s Cathedral in Alexandria, the historical seat of the Coptic Pope, killing at least 16 and injuring 66. Pope Tawadros, head of the Coptic Church, was delivering a service at the cathedral at the time, but escaped unharmed. In addition to the series of attacks on churches, around 154 Christian families fled the northern Sinai town of al-Arish in January-February 2017 after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants. The Grand Imam of al-Azhar strongly condemned the church attacks, while a faction of the Brotherhood also issued a statement of condemnation.

In response to the Palm Sunday bombings, Sisi issued a Presidential Decree on 9 April 2017 declaring a nation-wide state of emergency, the first under the 2014 Constitution. The decree was passed unanimously by Parliament on 11 April. The state of emergency is governed by Law 162 of 1958, ‘The Emergency Law’. While the exact details of the Emergency Law and how it will be applied were unclear at the publication date, it is likely that the military will be granted extended powers. DFAT assesses that detentions and arrests are likely to increase as a result of the declaration of a nation-wide state of emergency. Sisi also proposed the establishment of a Supreme Council to combat Terrorism and Extremism, which would consider new powers for police and intelligence investigators and allow for the fast-tracking of terrorism cases through the court system.

Communal Violence

Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. High-profile incidents in which people are killed or churches attacked are not a frequent occurrence.

The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya.

A general breakdown in law and order nation-wide following the 2011 Revolution contributed to a significant growth in communal violence that peaked in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. On these occasions, Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools, and private property. Most, but not all, of the incidents were marked by a slow police response, which may have been in part the result of police and security personnel being otherwise engaged in protecting government institutions. Large-scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters.

A November 2014 government report into the anti-Christian violence found that 29 people had died in communal-related killings, 52 churches had been completely razed, another 12 damaged, and numerous Christian-owned properties destroyed. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years. The US State Department reported in 2015 that, under a specific presidential order, the military had completed the rebuilding of around one-third of the churches and other buildings destroyed in the 2013 violence.

Incidents of communal violence continued in 2016. Many of the incidents took place in Minya, including physical assaults of Christians and looting and destruction of Christian property. In May 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine. Around 154 Christian families fled the northern Sinai town of al-Arish after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants in January-February 2017.

Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. However, lower-level Church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims.

DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.

Christians

DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. However, some Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means. Christians are also less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities, despite the lack of any official policy of discrimination against them.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant, their son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

2. 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 the applicants have complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicants was subject; whether the applicants intend to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

3. The applicants have never been to Australia.

4. 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.

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

6. The Tribunal has had regard to the visa applicants’ circumstances. The Tribunal accepts that the visa applicants have strong personal ties to Egypt in that they have lived there all their life, and their Egyptian relatives include [children] who live there as well as the second named applicant’s father. They also have buildings and land and the first named applicant works on both and the second named applicant works as [Occupation 1].

7. Although the applicants have personal ties as well as business, financial and property in Egypt, the Tribunal is not satisfied that these ties will encourage them to return after an approved stay. In reaching this conclusion, the Tribunal considers the applicants have strong personal ties to Australia in that the review applicant (their son), is here.  It is also based on the fact that the review applicant arrived in Australia on a [temporary] visa and then applied to change his status when he applied for a protection visa. While the review applicant has stated that the applicants could not stay away from Egypt because of their work, property and familial ties, the Tribunal has significant concerns that the applicants will attempt to change their status once in Australia so that they can remain. This is based not only on the fact that the review applicant is already here but also because DFAT assesses that while the Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations and occasional violent incidents of communal violence is likely to continue to occur. DFAT also assesses that discrimination faced by Christians in Egypt is more likely to be societal than official in nature and is likely to vary considerably according to geographic location however some Christians particularly in rural areas may face difficulty in obtaining justice through legal means. Although the review applicant has stated that this does not affect the applicants, and that his own circumstances that led to him applying for a protection visa do not apply because the applicants do not preach, the Tribunal remains concerned that the situation for Christians combined with the presence of the review applicant in Australia means that the applicants will not depart Australia at the end of an approved stay.

8. These concerns lead the Tribunal to conclude that the applicants do not genuinely intend to stay temporarily in Australia. While the Tribunal has considered that the first named applicant has travelled to other countries, the review applicant does not reside in those countries. The Tribunal has also considered whether the applicants’ family especially the second named applicant’s father and their dependent son would provide a strong incentive for the applicants to return to Egypt, however the Tribunal is not satisfied that they would given that there is Egyptian family that can look after the second named applicant’s father and any separation from their son would not be permanent if they were to, like the review applicant, seek to successfully change their status onshore and subsequently sponsor him.

9. While the review applicant has also stated that he is willing to lodge a security if required, the Tribunal is not satisfied that a bond would encourage the applicants to comply with conditions or depart Australia should their intentions in coming to Australia be to remain.

10. The Tribunal acknowledges that the review applicant wants to see the applicants. While the Tribunal has sympathy for the review applicant, the Tribunal also has significant concerns that the applicants will seek to remain in Australia and will seek to change their status here.

11. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intends to stay temporarily.

12. For the above reasons the Tribunal is not satisfied that the visa applicants 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Angela Cranston
Member