Hanoun (Migration)

[2018] AATA 4318

Hanoun (Migration) [2018] AATA 4318 (21 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Antoun Elias Hanoun

VISA APPLICANT:  Mrs Laila Elias Gorgey Hana

CASE NUMBER:  1725541

HOME AFFAIRS REFERENCE(S):           BCC2017/3069797

MEMBER:Frances Simmons

DATE:21 September 2018

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 21 September 2018 at 1:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – purpose of visit – visit family – affordability to visit – circumstances in home country – living with daughter in home country – ongoing role caring for grandchildren – different address on national identity card – Coptic religion – no experience of communal tension or violence – willingness to pay security bond – decision under review remitted


LEGISLATION

Migration Act 1958 (Cth), Schedule 2 cl 600.211

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 25 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 August 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 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 (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 intends to stay in Australia temporarily for the purpose for which the visa was granted. 

5. The review applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Ms Mary Hanoun Khilla, the visa applicant’s cousin. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The visa applicant is a sixty-four year old citizen of Egypt. She was born in Sudan on 27 June 1954 and became an Egyptian citizen in 1978 after she married an Egyptian citizen. Her daughter, who was born in 1980, has two children, twins, who were born in 2010. The visa applicant states she currently lives with her daughter and grandchildren in Nasr city, Cairo.

8. The visa applicant applied for a visitor visa in the sponsored family stream to visit her brother and cousins in Australia. The application is accompanied by statutory declarations from her brother, who is an Australian citizen, and her two cousins, Mary John Hanoun-Khilla and Mona Massoud, who are also Australian citizens. The cousins state that they have visited the visa applicant in Cairo, enjoyed her hospitality and wish to reciprocate.

9. The visa application is accompanied by copies of the biodata page of the passport of the visa applicant, her Egyptian national identity card, which was issued in 2014 and records that she is a widow and a housewife of the Christian religion, a copy of her birth certificate and the birth certificate of her brother, a copy of the biodata page of her brother’s passport and documentation relating to his change of name and Australian citizenship.

10. The Tribunal has also been provided with the national identity card of the visa applicant’s daughter, the birth certificates of her grandchildren, a copy of the rental agreement entered into by visa applicant’s daughter in 2017, and translations of these documents. The Tribunal has had regard to the written submissions made in relation to the review application and, were relevant, this evidence is referred to further below. The review applicant has also submitted bank statements as evidence of his capacity to pay a security bond if required.

    Issue on review

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 brother and cousins 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 visa applicant has not travelled to Australia and therefore there is no record of compliance, positive or negative, to consider.

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.600.612):

    ·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.

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

16. The Tribunal formed a favourable impression of the credibility of the review applicant and the visa applicant.  The Tribunal also accepts the additional evidence provided by the visa applicant’s cousin, Ms Hanoun Khilla. The three witnesses gave consistent evidence about the visa applicant’s circumstances in Egypt, her reasons for visiting Australia, and the factors that will motivate her to return to Egypt.

17. On the evidence before it, the Tribunal accepts that the visa applicant is a citizen of Egypt. The Tribunal also accepts that the review applicant is a citizen of Australia and that he is the brother of the visa applicant. The review applicant first arrived in Australia in 1994 and subsequently acquired Australian citizen. His brother passed away in Saudi Arabia and the visa applicant is his only surviving sibling. The review applicant is currently employed and has two children aged fourteen and sixteen. He states he cannot afford to take his whole family to Egypt. The applicants declare the visa applicant intends to visit Australia temporarily to see her brother and three cousins for around one month duration during which time the visa applicant will stay with the review applicant and with her cousin, Ms Hanoun-Khilla, who has a big house. The review applicant intends to take some leave from work and show her around. Ms Hanoun-Khilla, who has previously visited the visa applicant in Egypt, most recently in 2009 when she attended the wedding of the visa applicant’s daughter, corroborated the plans for the visa applicant’s visit to Australia.  The visa applicant said she planned to travel to Australia for a short period over Christmas before returning for 7 January for their Coptic Christmas as she wants to share this event with her family. She couldn’t leave her grandchildren and daughter for longer as she would miss them terribly.

18. The Tribunal accepts that the visa applicant was born in Sudan in 1954 and subsequently became a citizen of Egypt after marrying an Egyptian citizen in 1978.  Since relocating to Egypt in 1978 she has travelled outside of Egypt to Syria in 2000 (to attend her brother’s wedding) and 2003, which was the last time she saw her brother in person. Her only daughter was born in 1980 and now has her own children who were born in 2010. The visa applicant told the tribunal that after her husband passed away she was all by herself but then there were problems between her daughter and her husband and they separated and she went to stay with them to help with the children. She has been living with her daughter for five or six years. Her daughter has not divorced her husband out of respect for her children and because her husband still sends the family money from Saudi Arabia. The visa applicant told the Tribunal that her circumstances would not allow her to travel out of Egypt after 2003 as he husband had a problem with his heart muscle and his legs so she was caring for him until his death. While the visa applicant had some difficulty remembering what year she began living with daughter and there was also some confusion about the year her husband died, the Tribunal accepts that these difficulties reflect the challenges of giving evidence via interpreter by telephone and also of recalling events that occurred some time ago.

19. Overall, the Tribunal found the visa applicant’s account of her circumstances in Egypt to be detailed, credible and consistent with the evidence of the review applicant and Ms Hanoun-Khilla. The visa applicant gave evidence she lives with her two infant grandchildren and her only daughter. The daughter has a regular income, works full time at X-Media, and relies on her mother to help care for the children. The daughter is separated from her husband who now works in Saudi Arabia. Her daughter occasionally speaks with her husband as he continues to provide financial support for his children. Her daughter leaves for work in the morning and returns at about 3 or 4pm five days a week. The visa applicant said she had been caring for her grandchildren since the day they were born and she could not live without them. She told the Tribunal that her daughter had not taken her annual leave for two consecutive years. While the visa applicant is visiting Australia, her daughter will take leave so she can take the children to school and do the work the visa applicant normally does for the children. She wants to see her family in Australia because she is an elderly woman and this is her opportunity to see her brother and cousins while she was still able to travel. In response to questions from the Tribunal, she said she did not have a health issues.

20. The delegate did not consider the presence of the visa applicant’s daughter and grandchildren in Egypt outweighed the incentives for the visa applicant to remain in Australia after the end of her permitted stay. However, the Tribunal considers that the presence of her only child and two grandchildren in Egypt is a significant incentive for her to return to Egypt, particularly in circumstances where visa applicant has a significant and ongoing role caring for her young grandchildren while their mother, who is separated from her husband, is at work. The Tribunal accepts the visa applicant’s daughter works full-time at a media company called X-Media in Cairo as a program producer (this is consistent with the occupation listed on the daughter’s national identity card) and that the visa applicant takes the grandchildren to school and plays an important role in their care.

21. The Tribunal did invite the review applicant to comment upon its concerns that the residential address provided by the visa applicant was different from the address stated on her national identity card and also different from the address stated on her daughter’s national identity card. After considering the evidence of the parties about this issue, the Tribunal is prepared to accept that neither the visa applicant nor her daughter updated their residential address when they last renewed their national identity cards. On the evidence before it, the Tribunal is prepared to accept that the visa applicant lives with her daughter and two grandchildren at the address stated.  The review applicant provided a copy of the rental agreement entered into by the visa applicant’s daughter and she told the Tribunal this lease was renewed on a year by year basis. While the visa applicant described this apartment as having three bedrooms and the lease states it is a two bedroom apartment, the Tribunal accepts the living space has been partitioned to create a third bedroom for the grandchildren and that this explains why the visa applicant stated the apartment had three bedrooms.

22. Although the delegate did not mention any concerns about the visa applicant's religion (as a Coptic Christian) being a disincentive for her to return to Egypt, the Tribunal discussed this issue at the hearing. Coptic Christians are a significant minority within Egypt and approximately seven to nine million, about eight to 10 per cent of the population.[1] Official figures from 2011 indicate that Egypt has 2,869 churches.[2] In recent decades, communal tensions and violent incidents have increased, but day-to-day life for most Copts in Egypt is not overtly affected by communal tensions and, most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity.[3] DFAT assesses that occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular.[4]

    [1] ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.4, CISEC96CF13957

    [2] ‘Egypt's PM forms committee to legalise status of churches’, Ahram Online, 30 January 2017, CXC904066926

    [3] ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.12, CISEDB50AD4203; ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.5, CISEC96CF13957

    [4] ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.12, CISEDB50AD4203

23. The visa applicant gave evidence she married a Coptic Christian and that she is a Coptic Christian. She attends the Church of St Mary and St Athanasius on the weekends with the children. The Tribunal notes that it could not locate any reports of attacks against this church.  The visa applicant acknowledged that there are attacks against churches but in Cairo there is tight security. The Tribunal referred to reports that in December 2016, an Islamic State suicide bomber attacked a Cairo church, killing 29 people and injuring 49.[5] The visa applicant told the Tribunal that this was not the area in which she attends church, but she acknowledged that the funerals of those who were killed in this attack were held at the church she attends. The Tribunal was concerned that communal violence, in the form of attacks on Christian Coptic churches, could discourage the visa applicant from returning to Egypt. The visa applicant acknowledged that some Coptic Christians have experienced difficulties in Egypt but gave evidence that she had not personally experienced problems. She told the Tribunal that in every area there was a church and she did not attend churches in different areas. She was not scared of practicing her religion, if things happened it was an act of God which could not be controlled, she attends church and takes communion. This was consistent with the evidence of the three witnesses. The review applicant was not aware of his sister having any problems in Egypt because she was a Coptic Christian and he said he believed she would tell him if she had any difficulties living in Egypt.

    [5] ‘ISIS Claims Responsibility for Egypt Church Bombing and Warns of More to Come’, The New York Times, 13 December 2016, CX6A26A6E15066

24. On the evidence before it, the Tribunal accepts the visa applicant has strong family ties that will encourage her to return to Egypt.  The Tribunal accepts that the visa applicant has lived in Egypt since 1978, that she currently resides in Nasr city with her only child and two grandchildren, and that she would not want to be separated from her daughter and her two grandchildren for any prolonged period of time.  The Tribunal accepts the evidence that the visa applicant’s daughter is engaged in full-time employment, separated from her husband, and relies upon her mother to help care for her children.  The visa applicant has no history of paid employment. While she remains in regular contact with her brother and cousins in Australia, she has not seen her brother in person since 2003 whereas she lives with her daughter and grandchildren in Egypt. The Tribunal accepts she has lived most of her adult life in Egypt. Her circumstances do not suggest that she would seek to work in Australia and, while the Tribunal was concerned the situation for Coptic Christians could discourage the visa applicant from returning to Egypt, the Tribunal accepts her evidence that she is able to practice her faith, does so on a weekly basis, and has not been harmed doing so. 

25. The Tribunal considers the visa applicant’s family ties in Egypt outweigh her family ties in Australia and provide a strong incentive for her to return to Egypt in compliance with the conditions of any visitor visa granted to her. In the Tribunal’s view the presence of her only daughter and two grandchildren in Egypt is significant and will encourage her to return to Egypt before the end of her permitted stay. While there has been an increase in communal tensions and violent incidents against Coptic Christians, the Tribunal accepts that visa applicant has not personally been affected by these tensions, that she attends her local church with her grandchildren on a regular basis, and that she has not experienced difficulty doing so. The Tribunal that, other than trips to Syria in 2000 and 2003, the visa applicant has not travelled outside of Egypt for any period since 1978. Given her strong ties to Egypt where she shares a home with her daughter and grandchildren, and noting that there is nothing in her circumstances to suggest she would seek to work or study in Australia, the Tribunal consider that the incentives for her to return to Egypt outweigh any factors that might encourage her to seek to remain in Australia beyond the period of her permitted stay.  

26. After carefully considering the visa applicant's circumstances for the reasons set out above, the Tribunal is satisfied that the visa applicant's stated intention to visit Australia temporarily for the purpose of visiting her brother and other members of her extended family is genuine. Whilst the Tribunal is not free from doubt, on the evidence before it, the Tribunal accepts that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and will not remain in Australia after the end of her permitted stay.

27. In reaching this conclusion, the Tribunal also places some favourable weight on the fact the review applicant is willing and able to pay a security bond if required and provided bank records showing he has the capacity to do so.[6]

    [6] Tribunal file, folio 50-51 (bank records of the review applicant showing a current balance of $AUD 1690)

1. 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

2. 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.

   Frances Simmons
   Member