Remais (Migration) - [2018] AATA 5198

Remais (Migration) [2018] AATA 5198 (12 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Dina Remais
VISA APPLICANT:  Ms RANIA REMAIS
CASE NUMBER:  1729848
HOME AFFAIRS REFERENCE(S):           BCC2017/3936867
MEMBER:Meena Sripathy
DATE:12 November 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 12 November 2018 at 3:45pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous marriage – Coptic Christians in Egypt – desire for further family visits – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, 600.212, 600.231
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 October 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.
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.
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 the visa applicant genuinely intends to stay temporarily in Australia.
The review applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. Relevant details from the evidence provided is included in the discussion below.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information in the visa application indicates the visa applicant is a 39 year old single woman from Egypt. She lives with her widowed mother. She indicates she is a pensioner in Egypt, and provided evidence of her pension insurance no and bank statement. She seeks the visa to visit her twin sister, who is an Australian permanent resident. Her sponsor undertakes to provide full accommodation and financial support for the duration of the visit.
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and spending Christmas together. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
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 previously visited Australia in December 2015- January 2016 and departed within the period of the visa. There is no other information to suggest she did not comply with conditions of the visa on that occasion. The Tribunal therefore finds that she complied substantially with the conditions of the last substantive visa held.
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.
The Tribunal notes that the review applicant previously sponsored her mother to visit Australia. Department records in fact show that her mother has visited Australia on 4 previous occasions between 2012 and 2017 and has departed within the visa period on each occasion.
The review applicant has appeared before the Tribunal previously, in 2012, in relation to a review of her mother’s visitor visa refusal and in 2015 in relation to an earlier refusal of a visitor visa for the visa applicant. Both matters were remitted to the Department for reconsideration and visas were granted, and the visa applicants came to Australia and departed within the period of the visa. The Tribunal has considered the evidence provided in the context of those reviews.
The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the available evidence, it finds that the visa applicant is a single, unmarried woman, who lives with her mother in her mother’s apartment in Cairo. Both the review applicant and visa applicant gave evidence that she has never been married and has always lived with her mother, in accordance with tradition in Egypt. The Tribunal discussed with the applicants’ inconsistent evidence given in a previous review in 2012 relating to the review applicant’s mother’s visa application, that the visa applicant was married for 5 years and their mother lived alone in 2012. In response to this, both applicants clarified that she was in fact married once, for a very short period of around one month, and it took some years before they were able to have this marriage annulled. Because of the annulment they now do not refer to the marriage at all.
Following the hearing, a copy of the ‘Transcript of Divorce Registration’ indicating a ‘repudiation’, or divorce, in November 2016 was provided. The Tribunal observes that this evidence appears to be consistent with the expansion in 2016 of what were previously limited grounds to seek divorce for Coptic Christians.[1] Given the clarification and evidence provided, the Tribunal accepts the applicants had no intention to mislead about the visa applicant’s circumstances and makes no adverse inference from this discrepancy in the evidence.
[1] See for example, >
Apart from her mother, the visa applicant has numerous uncles, aunts and cousins in Cairo and is in regular and close contact with these extended relatives. The review applicant gave evidence that all of her extended family reside in Egypt and none have left the country in recent years to reside elsewhere. The family are Coptic Christian on both maternal and paternal sides.
The applicants gave consistent evidence that the visa applicant is presently unemployed. She last worked up until she came to Australia for a visit in December 2015. When she returned the medical centre she was working at had closed down and she has not been able to get work since then. She has previously been employed as a childcare worker and teacher. She told the Tribunal she is looking for work and hopes to find some work soon. In the meantime she is active doing voluntary work with her church. The visa applicant gave evidence that she attends church regularly, for services and volunteer activities. She indicated that she feels secure going to church and has not experienced any issues.
The Tribunal has considered country information about the circumstances facing Coptic Christians in Egypt and in particular the series of major attacks targeting Coptic Christian churches in recent years[2] including recent information of an attack on a Coptic Orthodox Church and shop in December 2017.[3] It discussed this with the applicants during the hearing, and put to them its concern about whether this would be a factor discouraging the visa applicant from returning and has considered their responses. The review and visa applicant acknowledged the visa applicant’s Christian faith and involvement in her church. but said the area she lives in is safe and there has not been any issues facing her or her mother and it is not a factor that would encourage the visa applicant not to return. The Tribunal also notes and places significant weight on the visa applicant’s own recent compliant visa, and the fact that her mother has visited on 4 previous occasions and returned each time. It also notes the review applicant’s evidence that none of her extended family members have left Egypt for this reason in recent years. The Tribunal considers the applicants’ response is not inconsistent with the country information insofar as it acknowledges that incidents against Copts occur but not as a daily occurrence and the Tribunal accepts that the vast majority of Egypt’s 8 million Christians do not face violence in their daily lives.
[2] DFAT Country Report Egypt 19 May 2017 , especially paragraph 2.30
[3]
Considering all of the above, the Tribunal finds that the applicant’s immediate family ties are balanced between Egypt where she has her mother, and Australia, where she has her twin sister and niece and nephew. Although she is presently unemployed, she has access to a pension income in Egypt and relevant and recognised education and work experience background there, whereas she would be starting her career from scratch in Australia and would face additional barriers of non recognition of her qualifications and past experience and the language barrier. She has stable accommodation in Egypt with her mother. In Australia she has only her sister for support, who is occupied with her own family and commitments.
Given the review applicant’s likely desire for her mother to visit again in future, the Tribunal considers a reasonable financial security is likely to provide a further incentive for compliance in this case, particularly since non compliance on the part of her sister will make it difficult for a future visit by her mother.
On balance, giving particular weight to the compliant visa history of the visa applicant and her mother and for all 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
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.
Meena Sripathy
Member

Gunman kills 11 in attacks on Coptic church, Christian-owned shop in Egypt, Reuters, 29 December 2017,

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