Soliman (Migration)

[2018] AATA 3165

Soliman (Migration) [2018] AATA 3165 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Remon Zakaria Naguib Soliman

VISA APPLICANT:  Miss Marian Zakaria Naguib Soliman

CASE NUMBER:  1710270

DIBP REFERENCE(S):  BCC2017/452242

MEMBER:Nicole Burns

DATE:30 July 2018

PLACE OF DECISION:  Melbourne

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 30 July 2018 at 12:36pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Visit brother – First visit to Australia – Brother will fund trip – Incentive to return – Cares for mother in Egypt – Stable job – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.221, 600.222

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 12 March 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 3 February 2017. 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 Tourist 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 they were not satisfied the visa applicant intends a genuine visit to Australia.   

5. The review applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant over the telephone from Egypt.  She is the review applicant's sister. 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

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and seeing parts of Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).  Given the visa applicant has never visited Australia, cl.600.211(a) does not apply.

10. 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:

    ·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.

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

12. The delegate was not satisfied the visa applicant demonstrated sufficient ties to return home to Egypt after any visitor visa that may be granted. 

13. The Tribunal has considered the visa applicant’s particular circumstances in Egypt and reasons for the proposed visit as well as the review applicant’s immigration history, where relevant.

14. The visa applicant indicated in the visa application form that she wished to visit her brother in Australia for three weeks to celebrate Coptic Orthodox Easter on 16 April 2017.  That date has now passed.  However at hearing the review applicant indicated that he wanted to see his only sister and show her his life in Australia.  He visits Egypt most years but is limited by how much leave he can take from his job as a pharmacist in Bendigo.  He feels the pressure to balance his life and work commitments in Australia with his family commitments to his only sister and mother in Egypt, particularly after his father’s death due to cancer in May 2016.  His oral evidence was consistent with his sister’s oral evidence and the Tribunal accepts his claims as to the purpose of the planned visit. The Tribunal also accepts his claims that he will pay for the visit and has the capacity to do so, evidenced by bank account statements he provided showing substantial savings and of his ongoing professional employment.

15. Before the Tribunal the review applicant described his sister’s circumstances in Egypt.  He said she is 36, single, lives with their 65 year old mother, and works full time as an English teacher at a government primary school in their home area – Shebin El-Kom, a city in the Nile Delta and the capital of Monufia Governorate.  When not at work she helps care for their mother who suffers from osteoarthritis and has mobility issues as a result.  If the visa applicant visits Australia her mother’s brothers will help care for her however the visa applicant indicated that she would only be able to be away from her mother for a short period of time. 

16. The existence of the visa applicant’s only sibling – the review applicant – in Australia does act as an incentive to some extent for her to stay in Australia.  However the presence of her mother in Egypt, whom she has lived with all her life and cares for, as well as other extended family members, acts as a significant incentive for the visa applicant to return there before the expiry of any visitor visa that may be granted.  So too does the applicant’s work commitments, evident in her brother’s oral evidence to the Tribunal that she has worked as a teacher for many years and continues to be promoted and valued for her work.  In a letter to the Tribunal the review applicant indicated that his sister is soon to be promoted to a Deputy Principal position.  The review applicant also told the Tribunal that she obtained a Master’s degree in working with children with special needs, including those with hearing impairments.  Evidence has been provided to the Department and Tribunal confirming the applicant’s long term employment at a government school in Egypt, permission to obtain leave, as well as evidence of some savings accrued by the visa applicant. The Tribunal accepts the visa applicant is committed to her work and this would act as a strong incentive for her to return to Egypt, even if her salary is not particularly high, as noted by the delegate.

17. The review applicant said he and his sister have inherited a share of a four story building their grandfather used to own in Egypt and provided to the Department evidence of such.  The Tribunal accepts that is the case and considers it acts as some incentive for the visa applicant to return to Egypt however notes it could also, possibly, be sold if required.

18. 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 aspect of the case at hearing.  Both the review applicant and visa applicant stated that the visa applicant has never experienced any problems as a Coptic Christian in Egypt, that she has been able to practice her religion freely, and that the particularly governorate where she lives is peaceful.  The visa applicant noted that at her school where she teaches there are both Muslim and Christian students and no problems.  In a letter[1] to the Tribunal the review applicant argued that not all Christians in Egypt suffer persecution and most cases are found in Upper Egypt or areas of low education and financial ability.  However the visa applicant comes from a city well known as one of the most educated in Egypt, with four presidents originating from there, and with a very low unemployment rate and intolerance of extremism.  As well, there is no record of any conflict between Christians and Muslims in this city.   His contentions are confirmed by country information that indicates that the majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt, including Minya Governate[2], whereas the visa applicant lives in Monufia Governate. Therefore whilst there is some risk the visa applicant, as a Coptic Christian, may wish to stay in Australia beyond the permitted stay because of the targeting of Coptic Christians and churches in Egypt, it considers this risk is low given her evidence that she has not been directly affected, nor her home area, which is supported by independent country information. 

    [1] Dated 19 June 2017

    [2] DFAT Country Information Report Egypt, 19 May 2017, at 3.19, 3.21, 3.22 and 3.24.

19. The review applicant gave evidence that he came to Australia in 2012 as the holder of a permanent skilled visa.  He had left Egypt to work as a pharmacist in Oman in 2009, primarily due to a shortage of jobs in that field in Egypt.  There is nothing in the review applicant’s migration history to indicate that he has circumvented the proper migration channels to migrate to Australia and establish his life here.  Given these considerations the Tribunal is of the view that the review applicant would ensure his sister returned to Egypt before the expiry of any visitor visa that may be granted.

20. In summary, the Tribunal accepts the visa applicant has reasonably strong incentives to return to Egypt in the form of her work/career and being the primary carer for her mother there who is elderly and suffers from osteoarthritis.  There are some concerns given the at times insecure situation for Coptic Christians in Egypt however the Tribunal is of the view that these problems do not affect the visa applicant directly or her home area, and any residue concern is outweighed by other positive aspects of the case.

21. Considering the visa applicant’s circumstances overall and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting her brother and to see a part of Australia is genuine. 

22. 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

23. 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.

    Nicole Burns
    Member