TOSSON (Migration)

[2018] AATA 3560

TOSSON (Migration) [2018] AATA 3560 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr GEORGE TOSSON

VISA APPLICANTS:  Mr TOSSON FAWZY TOSSON TADROS
Mrs MARY REZK MATTA HENIS

CASE NUMBER:  1720305

DIBP REFERENCE(S):  BCC2017/2562633

MEMBER:Christine Cody

DATE:7 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Visitor (Class FA) visa for the first named visa applicant for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the application for Visitor (Class FA) visa for the second named visa applicant on the grounds that it has been withdrawn.

Statement made on 07 August 2018 at 10:36am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – First named applicant – Visit family in Australia – Error on form made by the first named applicant – Applicant informed the Tribunal of previous applications – Incentives to return – Well settled and established in Egypt –Carer of grandchildren – Credible witness –Bond offered by Review applicant –  Acknowledged difficulties for Coptic Christians – Decision affirmed – Second named applicant withdrew application

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (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 23 August 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 on 19 July 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. 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the visa applicants intended a genuine visit and to comply with the conditions of the visas if granted. Concerns were raised about country conditions and noting that the visa applicants are Christians, it was not considered that the ties in Egypt were strong enough incentive to return. A concern was also raised by the delegate about a failure to declare past visa applications.

5. The review applicant was represented in relation to the review by his registered migration agent, Mr Satwinder Singh.

6. The review applicant lodged copies of the delegate’s decision records for both visa applicants with the application for review. He also lodged a statutory declaration noting that the visa applicant, Tosson, is his brother and his wife is the visa applicant: Mary. He noted that although the time has passed, and they had been unable to attend the wedding of their son in Australia, they still wanted to come to Australia to see their son and how he lives, as well as their brother, the review applicant. The review applicant was also concerned that continued refusals by the Department would make it difficult for him to invite anyone to Australia, and for this reason he lodged the application for review with the Tribunal. The Tribunal was unable to make a favourable decision on the papers, and invited the review applicant to attend the hearing.

7. Further documents were provided, including evidence of the purchase of the visa applicant’s property in 1990 in Alexandria, and a statutory declaration of their child living in Egypt, Sylvia. She noted that she has been unable to travel to Australia to date, for personal reasons, but her parents are able to do so, and will return to Egypt as they have strong ties. Sylvia has two children who the visa applicants look after, which allows her and her husband to be fully employed. Further, the visa applicants purchased a property for Sylvia and her husband in 2013. The visa applicants also own two properties (supporting documents for these claims were provided). Her father is a retired teacher: he is 70 years old, and the mother is 62 years old. They don’t know much English and are comfortable socialising in their local community. They have brothers and sisters and they are very close to their relatives.

8. The agent’s submissions included the following:

   ·     The delegate’s concerns about ongoing political and sectarian tensions including terrorism lawlessness, political upheaval and ongoing violence, are concerns at the national level which may or may not apply to a city, individual citizen, or family. He is instructed that the neither visa applicant has experienced persecution or violence; they live in a community where there is a reasonable level of respect for different faiths and the neighbours and local community are respectful and tolerant of each other. They have never been subjected to violence or religious intolerance.

   ·     Concerning questions regarding the visa history, the delegate said it was asserted in the visa application form for the female visa applicant she had never been refused an Australian visa and signed a declaration stating that her information provided was correct and complete and up-to-date. Departmental records however indicated she was refused a sponsored family stream visitor visa on 9 June 2017. A consideration of the actual visa application form however shows that this incorrect; the previous refusal was declared on page 11 (the Tribunal accepts this).

   ·     Concerning the male visa applicant,  the statutory declaration of the review applicant stated that he inadvertently answered “no” when responding to the question of whether his brother had made a previous application. It was submitted that this was not an intentional error, given the statutory declaration that had accompanied the visa application forms, from the review applicant, which had acknowledged that there had been a recent failed visa application lodged for both applicants (refused for insufficient documents), and for this reason the applications were being re-lodged.  

   ·     They are willing to offer the security of up to $50,000 for both applicants.

   ·     They do not seek to move at this stage of their lives to another country and they are comfortable in Egypt.

9. The review applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants’ son Mina (who arrived on a student visa, was sponsored to work here, and now has permanent residence), as well as the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

10. The review applicant’s evidence included that he is an Australian citizen originally from Egypt. He arrived on a fiancé visa; they have children in Australia. The review applicant is a doctor; a specialist in general practice since 1995. Other relatives in Australia include the visa applicants’ son, Mina, the review applicant’s sister Samia Tosson who arrived in 1997 through business migration; she is an Australian citizen. He had an aunt who migrated 50 years ago who is here with her husband. There is also a cousin in Melbourne who migrated from Kuwait and qualified in Australia. His nephew Rafik Mikail came in 2004 on a student visa; he completed his studies and now has a successful business in Port Macquarie. 

11. There are no other relatives here. No one in the family has claimed protection; he would know if they had. 

12. In Egypt there are three brothers and two sisters (however one moved to America). He goes back and visits people in Egypt. The visa applicants’ son, Mina, also goes back to Egypt. His uncle (Napoloean Kyronis) came to visit his daughters in Melbourne a few times; he has complied with the conditions of his visitor visa and most recently came in 2014.

13. The son, Mina, and the visa applicants also gave evidence, confirming that the visa applicants do not intend to stay; they only intend to visit and then return.

14. The Tribunal noted that the delegate had concerns with a failure to disclose a previous visa application in the male visa applicant’s application form. However, the Tribunal accepts that the review applicant lodged the applications online, and that he confirmed that he had previously lodged visitor visa applications which had been refused. The female visa applicant’s visitor visa application form did acknowledge the refusal of a previous visitor visa application; whereas the male visa applicant’s visitor visa application did not. However, having regard to the intention that both of them would be travelling together, and the statutory declaration of the review applicant which accompanied the female visa applicant’s application form whereby he confirmed lodging a previous visitor visa application, in the circumstances, the Tribunal does not accept that there was any intention to deceive the Department about previous visitor visa applications in the male visa applicant’s application form. Further, the Tribunal notes that the male visa applicant had made earlier previous visa applications, which the applicants told the Tribunal about. The Tribunal had accessed Departmental records which indicated that a person with the same three Christian names as the male visa applicant and same date of birth, and with a slight variation of the family name (Tawadrous) had lodged previous visitor visa applications in 2006 and 2011 which had been refused. The review applicant told the Tribunal that another way of spelling his brother’s name could be Tawadrous.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

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

17. 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)). These visa applicants have not previously visited Australia.

18. 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.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

20. The Tribunal accepts that the visa applicants do not intend to work or study in Australia.

21. The Tribunal has weighed up the incentives for the visa applicants to remain in Australia and for them to comply with the conditions of the visa and return to Egypt. Evidence was given confirming that the visa applicants are very settled and established in Egypt, that they are very involved in caring for the grandchildren, with whom they have a strong bond, noting that both Sylvia and her husband work and the grandparents spent a significant amount of time with the children. The Tribunal also accepts that the visa applicants have siblings and other relatives and friends with whom they spend their time, and that these are incentives for them to return to Egypt. The Tribunal also notes, however, that the presence of their son and his new wife in Australia, as well as the brother and another sister, and considering the status of the visa applicants as retirees without jobs, that they are proposing to travel together, and the country conditions in Egypt, could be an incentive to remain in Australia, for example by lodging protection visa applications.

22. The Tribunal had concerns about the country conditions for Christians in Egypt, noting that numerous Christians, part of a 10% minority, express a fear of harm or targeting from certain Muslims. Although the claim was made that the visa applicant’s area is peaceful and that they have not had any problems, the Tribunal noted at hearing that the country information indicated that there had been a series of attacks in 2017 on Egypt’s Christian minority, including a bombing at St Mark’s Cathedral in Alexandria[1].

    [1] >

    The Tribunal was concerned that the visa applicants reside in Alexandria, are Coptic Christians, and that, according to the documents provided to the Tribunal, their church is St Mark’s. The review applicant said that there are many churches named after the same Saints (St Mary’s or St Mark’s) within Alexandria. All applicants gave generally consistent evidence that the visa applicants’ local church is a church near their home (not St Marks), but that they have also attended St Mark’s Cathedral (the site of the bombing) on special occasions. The Tribunal had concerns that the visa applicants, having attended a church which was targeted by terrorists last year could have been an incentive for both applicants travelling together to seek to remain in Australia, having regard to the presence of their family members, including their son and his new wife, and the brother and other family members. In response, it was submitted that if the visa applicants had a fear of persecution, or further harm, they could have moved homes, however they have not done so; their life remains where they reside.

23. The review applicant said that his brother is 70 years old, a retired school teacher living with his neighbours. The majority of terrorism is in Upper Egypt away from Alexandria, and since the bombings in 2017 it has been quiet. There are a lot of Coptic Christians going to and from Australia, indicating that there are no problems sufficient to make people want to stay in Australia. The male visa applicant’s health is reasonable for his age: he does not need any health procedures. The review applicant expects that he will only visit for about two weeks and he does not believe that he is coming to stay. In his retirement he is a music teacher and is very happy with his music and where he lives in Egypt. He is in contact with a doctor friend in Egypt and that doctor would let the review applicant know if there was anything wrong with the visa applicant. The motivating factor to return is the grandchildren; they rely upon the grandparents for meals and transport.

24. Although the Tribunal had some concerns about the intentions of the visa applicants especially when considering the country conditions, the Tribunal found the review applicant to be a credible witness; forthright, open and not denying that conditions in Egypt can be difficult for Coptic Christians. The Tribunal is prepared to place some weight on his assertion that the visa applicants have never had problems in Egypt, and that if they came to Australia and claimed protection, any claims of past harm/ fears would be a lie. The Tribunal also took evidence from the visa applicants and is prepared to accept that they are connected to their life in Egypt.

25. The Tribunal’s concern remains however that if both applicants come to Australia together, there would be significant incentive for them to stay. However, given the age of the visa applicants, and their long-term marriage, the Tribunal considers that if one of the visa applicants remains in Egypt, this is a significant incentive for the other to comply with the conditions of a visitor visa and return to Egypt. The Tribunal’s concerns were discussed at hearing. The Tribunal noted that it could not ask anyone to withdraw an application, however it did note that it may have to refuse the applications if both sought to come together, as the incentive for both to stay would be very strong if they came together. After a break whereby the review applicant was able to discuss with his agent, it was indicated that the female visa applicant would be withdrawing her visa application. After the hearing, the Tribunal received a withdrawal from the review applicant relating to the application for the female visa applicant.

26. The Tribunal noted that the bond was offered in the amount of $50,000; although this was for both applicants, the Tribunal considers that this would be a significant incentive if requested by the Department in respect of the application of the male visa applicant.

27. The Tribunal has accepted the withdrawal of the review application for the female visa applicant. Given that the female visa applicant will not now be visiting Australia at the same time as the male visa applicant, the Tribunal is satisfied that there is sufficient incentive for the male visa applicant to return to Egypt. In these circumstances, the Tribunal is satisfied that the male visa applicant intends to comply with the visa conditions and return to Egypt.

28. The application in relation to the female visa applicant has been withdrawn and the Tribunal no longer has jurisdiction in relation to that application. For the above reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the male visa applicant. The Tribunal is satisfied that the male visa applicant genuinely intend 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

29. The Tribunal remits the application for Visitor (Class FA) visa for the first named visa applicant for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    · cl.600.211 of Schedule 2 to the Regulations.

30. The Tribunal does not have jurisdiction in relation to the application for Visitor (Class FA) visa for the second named visa applicant on the grounds that it has been withdrawn.

    Christine Cody
    Member