1412207 (Refugee)

1412207 (Refugee) [2016] AATA 3813 (27 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412207
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Lilly Mojsin
DATE:27 April 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 April 2016 at 1:54pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Egypt and was born on [date].
The applicant applied for a [temporary] visa [in] September 2007, which was granted [in] December 2007. The applicant arrived in Australia [in] April 2008.
The applicant applied to the Department of Immigration and Citizenship (the Department) for a Protection Visa [PVA1] [in] November 2010. The delegate decided to refuse to grant the visa [in] February 2011.
The applicant appealed that decision to the then Refugee Review Tribunal (RRT) on 22 March 2011 [[file number]]. The RRT, [T1] [differently constituted], affirmed the department's decision on 4 July 2011 and [in] August 2011 the Federal Circuit Court [[file number]] dismissed by consent the applicant’s appeal.
The applicant initiated a Ministerial Intervention (MI) request under s417 of the Migration Act [in] September 2011 and [in] January 2012, the request was finalised as 'not considered'.
The applicant applied for a [Visa 1] [in] December 2011 which was refused [in] March 2013. The applicant sought merits review of that decision to the then Migration Review Tribunal (MRT) on 20 March 2013 and on 12 November 2013 the MRT [differently constituted] affirmed the department's decision.
The applicant initiated a Ministerial Intervention request under s351 of the Migration Act [in] December 2013 and [in] April 2014, the request was finalised as 'inappropriate to consider'.
The applicant applied to the Department for PVA2 [in] January 2014. The applicant attended a Department interview [DI2] [in] June 2014. The delegate decided to refuse to grant the visa [in] June 2014.
The applicant appealed that decision to this Tribunal [T2] on 11 July 2014, annexing a copy of the Department decision.
The T2 hearing [differently constituted] was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
See Annexure ‘A’.
CONSIDERATION OF CLAIMS AND EVIDENCE
In PVA 1, the applicant swore a statutory declaration [in] November 2010, gave oral evidence at a Department interview [D1] [in] February 2011 and also gave oral evidence to T1 on 6 June 2011. He claimed that he feared that he will be persecuted if he returns to Egypt because he has converted to the Korani [Qurani] faith from the Sunni Muslim religion, his family in Egypt would not hesitate to seriously harm him or kill him for that reason, he may be attacked and seriously harmed by Muslim community members especially the members of the hard line Islamic [Muslim] Brotherhood who seek to establish a Sunni Muslim state in Egypt, and he cannot practice the Qurani faith openly. He would have to practice the faith in a covert manner as he had done in the past. The applicant was refused a protection visa by T1. The Tribunal did not accept that the applicant was a Quranist who would suffer harm amounting to persecution for his Quranist faith on his return to Egypt.
In PVA2, dated [in] January 2014, the applicant stated that he was born on [date] in Helwan City, Cairo Governorate, Egypt. The applicant claims to have continually resided in Helwan City, Cairo Governorate whilst in Egypt. The applicant's passport was issued [in] 2005 in Egypt. The applicant's passport was renewed at the Egyptian Consulate in [Australia] [in] 2012. The applicant's passport was renewed for a 2^nd time at the Egyptian Consulate in [Australia] [in] January 2014.
In PVA2 the applicant claims that
·Egypt is not safe for humans. There are no laws and there are lots of bombings and killings every day.
·The Egyptian authorities hold information about the applicant that he will be arrested upon his return to Egypt.
·The applicant cannot leave his wife at home in Sydney
·He is Qurani[1] and the government arrests these people that have a different religion
[1] [File number] Folio 31
[In] May 2014 the applicant submitted a letter to the Department stating in relation to PVA2:
·at all times prior to his last departure from Egypt he did not express political opinions against the regime or officials of Egypt
·here in Australia he started to worry about his future and started expressing his political opinion in the last 12 months or so [May [2013]]. He initially expressed his opinion at social meetings such as dinner but he made other Egyptians angry
·expressing his opinion has resulted in having enemies as his political views are not welcomed by some Egyptians and this made him scared that they have reported him or will report him to the Egyptian government authorities. This is why he lodged a PVA
·at the time of lodging his PVA he decided not to hire a lawyer because he had been previously unsuccessful at the MRT due to the negligence of his migration agent
·early January 2014 his wife was very unwell and hence his application was incomplete
·Egypt remains locked in a protracted process of political transition after the resignation of Mubarak in February 2011. The current situation is unstable, unsafe and very risky, he cannot go back there
·political uncertainty and anxiety over the future of Egypt has generated ongoing political protests, labour strikes, deep distrust between Islamists and secular parties and there is more Christian tension
·he has expressed and will express again his view that the military in Egypt should not have a lot of influence in the political life of Egypt. He is totally against the forming of the government.
·He has also posted his political opinions against the regime of Egypt online and through [Social Media]. He has received threats. He is in no doubt that he will be persecuted if forced to return to Egypt.
·The current Egyptian government does not accept the validity of any political party other than the army itself. He is against the Egyptian government
·observing all the inhumane and unjust practices by the government of Egypt and its failure to protect its citizens against arbitrary detention and killings, he could not stand the situation anymore and he decided to fight back against the Egyptian government
·there is a heightened threat of terrorist incidents which will also endanger his life and his Australian partner’s life. It is not safe to return to Egypt
In a letter dated [June] 2014 the applicant stated that at the time of lodgement of PVA2, in January 2014, he feared his friends might report him to the Egyptian government for expressing his political opinion. He renewed his passport much earlier than receiving the serious threats made against him in April/May 2014. These threats have now endangered his life and his personal liberty. All these online posting and threats occurred after he renewed his passport. He stated that notwithstanding his previous claims for protection as a Qurani, his current claims and fear stems from his political activities as he has expressed serious political opinions online against the regime of Egypt, which has endangered his life, as well as the threats made against him by some individuals and he believes that his political opinion now should have come to the attention of Egyptian authorities.
Details of threats made against him are:
·a document dated [in] May translated that states:
[Mr A’s name]. [Social media post response from a person claiming to have reported the applicant to Egyptian officials, and threatening him.]
·A document dated [in] April translated that states:
[Mr B][A social media post from a named person asking the applicant by a variation of his name, and with threats, not to again add opinions about Egypt’s politics on the writer’s page.]
The applicant provided numerous pages of [Social Media] posts titled ‘[variation of applicant’s name]’.
At D2 interview, [in] June 2014, the applicant confirmed that the claims referenced in PVA1 regarding his Qurani faith were also submitted for consideration in his current PVA2. In addition to these claims, the applicant referenced claims relating to his political opinion and the general insecurity in Egypt. He provided information about his use of [Social Media], his own and his wife’s medical condition and activities with Ahl Alquran [Quranism]. Details of this interview are provided in the departmental decision.
After the Department interview the applicant submitted translation of an undated arrest warrant directed to him stating that he has been charged with writing an incitement against the institutions of the Egyptian state through the social media network.
The delegate refused the visa [in] June 2014 and the applicant appealed that decision to this Tribunal [T2], differently constituted, on 14 July 2014. The applicant provided a copy of the Department decision with his application to the Tribunal.
A statement dated to October 2015 signed by the applicant, in summary, states as follows:
·the applicant had been represented by [a named Migration Agent], in his previous PVA
·he told [this Agent] that he was a Muslim and [the Agent] told him that he could apply for protection based on being a committed Quarani.
·The applicant is not a committed Quarani
·the applicant will not continue to practice as a committed Quarani if he were to return to Egypt
·the applicant signed the documents prepared by [the Agent], purporting that he is a Quaranist, the documents were translated in Arabic by [the Agent] as the applicant was unable to read English for himself
·following [the Agent’s] advice the applicant researched Quaranis on the Internet which he took to be departmental interview
·the applicant, at the instigation of [the Agent], researched Quarani faith on the Internet in preparation for T1 hearing and he attended the hearing with [the Agent]
·after the hearing [the Agent] contacted him and told him he needed to get more evidence about his activities as a Quarani and asked him to find a friend who followed the Koran
·the applicant spoke to a friend who suggested a 3^rd person who could sign a statement to assist him. The applicant handed the statement to [the Agent]
·[The Agent] provided the applicant with the name of [Mr C] and told him he had a website. The applicant contacted him and they subsequently corresponded by email and the applicant provided the emails to [the Agent]. [Mr C] forwarded him emails of [another person] who contacted the applicant.
·The applicant submitted an application for a [Visa 1] that was unsuccessful
·the applicant lodged a complaint to MARA
·the applicant asserts that he explained to [the Agent] his problems in Egypt but the whole concept of the Quarani faith argument was created and put forward by [the Agent] and not himself
The applicant provided to the Tribunal printouts from the Internet, [a Social Media site], translation of a post by [Mr A] and [Mr B], on his [Social Media page], his identity document, and undated arrest warrant
The applicant’s new advisor submitted, on 26 November 2015, that
·the applicant’s expression of political opinion against the Egyptian regime on social media has resulted in serious danger against his life
·the applicant is not relying on any other ground that the political ground and he is upset/unhappy that his ex- migration agent made claims on religious grounds in the past
·the applicant’s psychological state of mind is unstable due to his fear of being returned to Egypt
A statement submitted to T2, dated 26 November 2015, provided no new information other than to reassert the applicant’s claims that he seeks protection for expressing anti-regime political opinions to persons in Australia and writing comments online and on social media, such as [Social Media site]. The applicant is against the regime because it is corrupt and undemocratic and is using force and violence to validate its governance. There is no rule of law and order in Egypt, the government kills innocent political opponents, their legal system is biased, the judiciary is corrupt. He has received a threat from an individual in Egypt.
The applicant’s friend [Friend A] provided a statement to the Tribunal stating that he has known the applicant for about 6 years and he is friends with the applicant. He is also friends with a person called [Friend B] who is of Egyptian background and he lives in [Country 1]. This person used to post many anti-government statements against the Egyptian government and its officials. When he travelled back to Egypt in September 2014 he was arrested by the Egyptian authorities and his whereabouts are unknown since his arrest. He was arrested at the airport for posting anti-government political statements against the regime of Egypt. He is aware that the applicant has posted some online anti-governmental statements against the Egyptian regime and its officials.
T2 HEARING
At the commencement of the Tribunal hearing I explained to the applicant that I would deal with his application as complimentary protection only. I also informed the applicant that the Tribunal has had regard to the most recent DFAT Country Information Report, Egypt, 24 November 2015 and I provided him with a copy.
The applicant told the Tribunal that his family, his father, mother and [siblings] live in Egypt near Cairo. He is a qualified [Occupation 1]. He did not work in [Occupation 1] in Egypt as the government does not give a chance in Egypt. He has worked in [Industry 1], and in Australia he works in [Industry 1], he is in [one feature if Industry 1], and in Egypt he also worked in [that same area]. He is married and he does not have any children.
The applicant confirmed that he had changed his claims from those in PVA1. He no longer claims that he converted to the Qurani faith or that he fears harm in Egypt for his religion. He confirmed that the statements he had made in a declaration, dated 2 October 2015, were correct and that he was told by his [Agent] he could apply for a PVA on the basis of being a Qurani, but he is not a Qurani, he will not preach in Egypt and he has never been a Qurani. He is a Muslim and not a Quranist.
When asked why he changed his claims, he said that he did not change anything, he is not a Quranist but a Muslim. He stopped seeing his previous [Agent] a while ago. It was a year ago, it was before he lodged a [Visa 1]. It was [Agent]’s firm who lodged the application for a [Visa 1]. He was not assisted by anyone when he lodged PVA2. He first instructed his current migration agent after he lodged PVA2. He went to see his migration agent prior to the D2 interview and instructed him, but the agent did not go to the interview with him. He is still acting for him but was not present at the Tribunal hearing.
I put to the applicant that he had obtained and provided false information to T1 from [another named person] that he had membership of the Korani faith in Sydney and he had attended a prayer place to pray. I put that he was prepared to contact [Mr C] by email stating he was a Quranist to provide him with corroborative evidence. He responded that it is not his issue, he is not a Quranist and he has lodged a complaint against the [Agent], it is not his story and it is not his problem. The storey was told by [Agent].
I put to the applicant that he went to the RRT1 hearing, to the MRT hearing and to D2 interview stating that he is a Quranist. He responded that this issue has passed and immigration made a decision and he has lodged complaint. Immigration cancelled [the Agent’s] licence for [number] years and it is not his story, his story is a completely different.
I asked the applicant why he left Egypt. He said that he left Egypt because he came to [Australia] on a [temporary] visa. In regard to his political activities in Egypt before he left Egypt, there were none. He was not a member of any political party, nothing happened to him in Egypt, but when he was exiting Egypt the police did not treat him well, because on the departure card he filled it out in Arabic and the police told him to fill the card out in English and got him to fill the card outside the line. I expressed my view that being pulled out of the line and being required to fill out a departure card in English did not amount to harm.
I asked the applicant why he fears returning to Egypt. He said that he wrote down his political opinion and told his friends and expressed his political opinion via [Social Media]. It was about 2013 that he began to express his opinion. He had joined [Social Media site] around 2008. Around 2011-12 when the revolution started and people were dying, it was not safe anymore so he started to discuss with friends the situation in Egypt. His discussions occurred on [Social Media site] and with friends face to face. He started telling friends and some accepted and some did not. Some of them boycotted him and others informed about him to a person he knows through a colleague. He was discussing the issue of journalists and he was following his political opinions on [Social Media]. He was surprised and shocked that this person has informed authorities about him. He sent him a message that his opinions are against government and he said to him he saw what had been written on [Social Media] and shared with friends. He wrote to him saying would like to inform him that his opinions are against the government and [challenging him to return to Egypt].
When asked why the government would be bothered about what he said on [Social Media], he said that people die every day and he wanted to express his opinion. It was put that he had previously submitted brief posts and articles from [June] 2011 on [a specific Quranist] website. He said “this is not my story and I have discussed that and it was a problem created by previous solicitor”. I put to the applicant that even if the solicitor had created the story he has continued to repeat this story until after the Department decision of [June] 2014. He said that when he applied for PVA2 he did so himself and the problem was there and the Department kept asking about what was in the past.
I put that he told the Department at D2 interview about being a Quranist and he said it is not his story and he does not want to discuss it.
I asked the applicant exactly when he joined [Social Media] and when he started on-line posting. I put that his [Social Media] page has not attracted massive support and he does not appear to have any followers. He responded that he has never blogged, all his political opinions are on his own [Social Media] page. He is not part of any other [Social Media] page.
I put to him that he has not used his surname on the [Social Media] page. I discussed the arrest warrants he had produced to the Tribunal that had his surname on them. I asked him why the Egyptian government wants to arrest him for a [Social Media] page which does not have his surname on it. I pointed out to him that his surname was missing. I pointed out to him that the arrest warrants addressed to him had his surname on them.

When I discussed with the applicant DFAT/DIAC information about document fraud in Egypt he said he disagreed and suggested the Tribunal could run a check on those documents. He said he did not know how the Tribunal would do this but it is the Tribunal’s job to do so.
I put to the applicant that he had previously provided false documents and he responded that it is the story of his previous solicitor.
I put to the applicant that it is possible to create a fake or anonymous [Social Media] account. He said “this is my personal [Social Media page]”. I put one can create followers on [this Social Media site]. He said “it is my [Social Media] for my use”. I put to the applicant that he does not have many followers, he said yes they are his friends. His [Social Media] postings are only with his friends. He has sent his political opinion to hundreds of friends.
Since posting on [Social Media] the applicant has received threats. I explained to the applicant that fake [Social Media] fans are sold or created. I put to the applicant that it is the connection to the Muslim Brotherhood that has caused problems for [Social Media] users. He responded that he is just an Egyptian who just wants to express his opinion against the government of Egypt.
I put to the applicant that there are reports, such as those reports about Alaa Abd El Fattah, who is a blogger and political activist and who was imprisoned in Egypt for allegedly organising a political protest without requesting authorization. I suggested to the applicant that not every user of [Social Media] is harmed and he responded that they have gone to his house and have threatened his family. He has a friend who resides in [another country] and he is on his [Social Media] list and when he left [there] he was arrested in Egypt. His friend had told him. I put to him that I could find no information on searches about this person. He said that he found out from his friend who found out from his family. He is on his list.
When asked, other than [Social Media], how has he expressed his political opinion, he responded that he expressed his views with his friends face-to-face. I suggested that he did not have any political profile, he had merely posted some comments, he had few followers and he was not a blogger, nor a political activist, nor a member of any political party or movement and I found his claims of harm by the Egyptian authorities implausible. He said they went to his house and the Tribunal can check on that. When asked how the Tribunal was able to do that he said he does not know.
I asked the applicant why he waited until April 2014, approximately 5 weeks before his scheduled D2 interview, to express his political opinion on his [Social Media] account. He responded that everything was getting worse. Egypt has been in a state of political turmoil since the January 2011 revolution, so if he was genuinely concerned with the political events occurring in Egypt and thought it was important to express his opinion on social media, it would be reasonable to expect he would have done this before April 2014. He said he can see the situation is not secure.
I put to the applicant that I was able to access the submitted [Social Media] pages and the political cartoon which appears to have been posted [in July] 2013[2], the image of the Egyptian authorities [conducting an action] which appears to have been posted repeatedly [in] May 2014 and one of [Mr A’s] threats which appears to have been posted [in] May 2014. These posts were not visible when I attempted to access them. He said they are examples of what happens, he said it was a response about what he had written, an Australian report.
[2] [File number] Folio 67
It was put to the applicant that these posts and threat were not visible publicly. He said that he sent him a message and this was a report. He was just expressing his political views on [Social Media]. The applicant was asked whether he has hidden these posts or threat from public viewing and the applicant indicated he had not, he was writing his political opinions.
When asked what it is he fears about returning to Egypt he said he will be killed and punished and put into prison as he has discussed politics and spoke against the government. He wrote on [Social Media] and discussed his views with his friends.
Police came to his house and threatened his family. They imprisoned the Australian reporter for 2 years. When a court rules in one session for 50 to be executed or a child, he said “is that normal”. If he goes back he will die.
When asked about his health he indicated he had [specific medical conditions]. I indicated to the applicant it was my view that he is able to take care of this medical condition in Egypt. He said there is nothing there, they execute hundreds of people.
I advised the applicant that I proposed to put information to him that would, subject to anything else he might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing.
I put that in his PVA1 he had stated he was Quranist, he proselytised and was an active member of the faith who feared harm on his return to Egypt for his religion. At MRT hearing for a [Visa 1] he stated he was a Quranist, he did not return to Egypt because it is too dangerous there and people are killing each other. In PVA2 he claimed that he was a Quranist and feared returning to Egypt for his anti-government political activity particularly demonstrated by his online activity. At the Department interview for PVA 2, he confirmed that the claims referenced in PVA1 regarding his Qurani faith were also submitted for consideration in his current PVA. He now states he is not a Quranist.
I advised the applicant that this information was inconsistent and if I relied on the information, I would find that it undermined his credibility and lead me to conclude that his claims were not genuine and that he created claims in order to obtain a migration outcome. If this was the case, I would have no other option but to find that he did not meet complementary protection criterion and I would affirm the decision under review.
The applicant responded and he said that his real issue or story is his political opinion, he is not a Quranist and he has provided sufficient evidence. He lodged a formal complaint [against the solicitor] with all the monetary evidence and this is why they stopped him working and cancelled his licence. He reported him to Immigration 2 to 3 years ago, it was in about 2013. I repeated to him that he stated he was Quranist in PVA2 2014 interview, he said when he filled in application they did not understand and they asked him what had occurred in the past.
A post hearing submission dated April 4, 2016 is summarised below. I do not purport that it is a transcript.
·The arrest warrant is genuine, and indicates the applicant will suffer serious harm. DFAT report demonstrates that democratic rights post-2013 have declined and individual civil rights are denied
·the Tribunal should have the document checked as it is 100% genuine
·the current advisor has assisted the government solicitors in their proceedings against the former migration agent. The applicant was influenced/pressured by the migration agent in regard to the issue of the Qurani faith and this issue should not undermine his correct claims or credibility
·Arabs usually have 3 names as their identity names and without using the surname necessarily sometimes they use the full 3 names plus the surname and the Tribunal should be sensitive to the differences in the way names are used in different cultures and countries
·all his documents are genuine and the Tribunal and the Australian government are knowledgeable and capable to check these documents
·his [Social Media page] is not fake or anonymous and he has few followers because his friends do not dare to follow him or shaving a public support of his views given the current situation in Egypt and the lack of freedom in Egypt
·the applicant disagrees with the Tribunal’s suggestion that the Islamic brotherhood are the only individuals persecuted in Egypt as a result of expression of political views online. The arrest warrant clearly demonstrates there is a real risk of harm against the applicant’s life
·applicant does not need to have a high political profile or be a blogger or have many followers to be covered by the UN Convention or Australian laws. It is enough that he has expressed his political views or opinions against the Egyptian regime publicly that his social media and accessible by others which is made in come to the attention of the Egyptian authorities
·his online comments were accessible by others including the Egyptian government agencies. He received threats of being reported and his family were approached and an arrest warrant was issued against him
·as the applicant has corrected the issue of being a Quranist, he has come with clear hands to the Tribunal
·the applicant is still with his Australian sponsor or wife and may well be eligible for ministers discretion he should be given the benefit of the doubt
·applicant’s psychological state of mine is unstable
·the applicant is entitled not only to complimentary protection but protection under provisions of the UN Convention
REASONS AND FINDINGS
The primary decision record (a copy of which the applicant provided to T2) indicated that the applicant had been refused a protection visa in Australia. The visa application under review is a valid application because the applicant is considered SZGIZ affected [SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71], I have proceeded (as indicated at the hearing) to consider the applicant’s claims in relation to the complementary protection requirements of s. 36(2)(aa) as the applicant has previously his claims for protection assessed under s.36(2)(a). I reject the applicant advisor’s submission that the applicants is entitled to be assessed against s.36(2)(a).
On the basis of his Egyptian passport, I accept that the applicant is a national of Egypt and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Egypt. Therefore, I find that the applicant is not excluded from Australia's protection by s.36(3) of the Act. I also find that Egypt is the applicant's “receiving country” for the purposes of s.36(2)(aa).
I have had regard to country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, including the DFAT Country Report: Egypt dated November 2015 and other information cited herein.
In June 2012, Mohammed Morsi of the Freedom and Justice Party - the political wing of the Muslim Brotherhood (MB) - was elected President of Egypt. As President, Morsi drew criticism for his perceived inability to improve Egypt’s economic situation and his increasingly authoritarian tendencies, exemplified by his 22 November 2012 declaration that executive decisions would be removed from judicial oversight, sporadic, large-scale protests and violent clashes between Morsi’s opponents and supporters led quickly to crippling political polarisation in Egypt. Massive nationwide protests against Morsi led to military intervention and Morsi’s removal on 3 July 2013. An interim government was quickly installed, and in January 2014 a new constitution was approved by referendum. Abdel Fattah el-Sisi, former head of the Egyptian Armed Forces, was elected President in an election held from 26-28 May 2014[3].
[3] DFAT Country Report: Egypt dated November 2015
I accept the independent evidence[4] indicating that there is widespread public support for the death penalty in Egypt, and several hundred offences are punishable by death under the Egyptian Criminal Code. Several thousand people have been killed during police and military dispersals of protests since the January 2011 revolution, with few credible investigations or prosecutions of those responsible. Since the July 2013 military intervention, criminal proceedings have been pursued against a number of senior Muslim Brotherhood [MB] figures in relation to the deaths of protesters during the Morsi Government the UN Working Group on Enforced or Involuntary Disappearances was aware of 52 outstanding cases of involuntary disappearance in Egypt. None of the hundreds of death sentences passed in the mass trials of MB members and supporters had actually been carried out. However, following the assassination of Egypt’s Public Prosecutor General on 29 June 2015, President Sisi said he intended to introduce new laws to ensure swifter executions for those given the death penalty through faster hearings and a more limited appeals process. The applicant does not claim that he is a member or imputed member of MB.
[4] DFAT Country Report: Egypt dated November 2015
I accept that the applicant is a Muslim, who lived in Egypt near Cairo, prior to his departure to Australia. The applicant worked in Egypt in the [Industry 1] as he was unable to obtain employment as a qualified [Occupation 1]. He departed Egypt for Australia as the holder of a [temporary] visa. He stated that he did not belong to any political party in Egypt and he was not involved in any political activity in Egypt. I do not consider that the applicant suffered any harm when he was pulled out of a departure line at the airport to rewrite his departure card in English. I am satisfied that the applicant had no adverse religious or political profile in Egypt prior to departing for Australia and that he did not suffer any harm in Egypt for any reason whatsoever.
Therefore I am satisfied the applicant did not flee Egypt fearing harm but came to Australia as the holder of a [temporary] visa.
In assessing whether the applicant would suffer significant harm if he returned to Egypt in the reasonably foreseeable future, I must consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Egypt there is a real risk he will suffer significant harm.
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I am not required to accept uncritically any and all claims made by an applicant. In assessing his credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility' and 'Guidance on Vulnerable Persons'.
I do not accept that the applicant is a witness of truth.
The applicant stated in his PVA1 that he feared harm on his return to Egypt as he is a proselytising Quranist. In his [Visa 1] application he advised the MRT that he had applied for a PVA on the basis that he was a Quranist and he stood by his protection visa claims. He said that he did not return to Egypt because it is too dangerous there and people are killing each other. In PVA2, and at D2 interview [in] June 2014, the applicant confirmed that the claims referenced in PVA1 regarding his Qurani faith were also submitted for consideration in his current PVA. In a statement dated 2 October 2015, the applicant resiled from his claims of being a Quranist. When this information was put to the applicant by s.424AA, he responded that he had lodged a formal complaint, in 2013, against the solicitor [Agent] who had acted for him in PVA1.
Even were I to accept that the applicant’s former solicitor had created the applicant’s claims for him and that the applicant was influenced by his former solicitor, and I do not, the applicant himself researched information on the Internet to support those claims, he repeated that information to T1. He personally contacted [Mr C] from a Quranist website in order to assist him in his claims. He informed the MRT he was Quranist and he continued to assert he was a Quranist when he lodged PVA2. He stated in evidence to T2 that he had written PVA2 himself. He also attended a D2 interview where he reasserted he is Quranist. He further asserts that he did not have [Agent] acting for him when he lodged his PVA or attended the D2 interview.
I reject the applicant’s claim that he should be given the benefit of the doubt. He has obtained false information from other persons. He has knowingly lied on oath at Tribunal hearings and made false statutory declarations. These circumstances cumulatively, cause me to have serious concerns about the degree of confidence I can have in the reliability of his evidence. I am satisfied that the applicant is not a witness of truth who will do whatever he perceives is required to obtain the visa sought.
The applicant claims that he joined [Social Media site] in 2008 and began expressing his political views prior to his D2 interview. By way of background, [this Social Media][5] is a social networking website intended to connect friends, family, and business associates. Users create a profile page that shows their friends and networks information about themselves. The choice to include a profile in a network means that everyone within that network can view the profile. Users create a profile page that shows their friends and networks information about themselves. Users are able to search for friends and acquaintances and to share photographs. As with other private information, users have the option to allow only friends to see their pictures or anyone. Groups can be created by users. Groups can be public and available to everyone or private, meaning only those invited can join and view discussions.
[5] [Deleted.]
The applicant claims that his political opinion is that Egypt is corrupt, undemocratic, is using force and violence to validate its governance and there is no rule of law and order in Egypt, it has a corrupt judiciary and legal system. The applicant waited approximately 5 weeks before his scheduled D2 interview, in April 2014, to first express his political opinion publicly on [Social Media]. When put to him, he stated that everything was getting worse, Egypt had been in a state of political turmoil since January 2011. I find implausible that a person claiming to have an adverse political opinion against the Egyptian regime, and deciding to voice that view publicly on [Social Media], would wait until just prior to his D2 interview to voice his concerns. I am of the view that the applicant will do whatever he believes is necessary to obtain the visa sought. I reject his claim that he had an adverse political opinion of the Egyptian government and military.
The applicant’s [Social Media] page does not contain his surname. I do not accept the applicant’s submission that Arabs usually use 3 names as their identity names and do not use their surname necessarily. The applicant has provided no independent evidence to support such a claim and I note that the arrest warrant produced by the applicant was issued using the applicant’s 3 names plus his surname. Therefore, as his [Social Media] page does not have his surname and as I have found that the applicant is not a witness of truth I reject his claim that he posted political comments adverse to the Egyptian authorities on [Social Media] in his ‘own name’.
I have considered whether the [Social Media] page submitted by the applicant to the Department and the [Social Media] page visible on the internet, showing a photograph of a person with a likeness to the applicant, could be perceived to be the applicant’s [Social Media]. Even were this [Social Media] page to be perceived to be the applicant’s [Social Media] page, I am not satisfied the applicant would suffer significant harm for posting. The independent evidence before me indicates that Egypt has arrested administrators of [Social Media] pages operated by MB[6]. There are other reports that persons who are bloggers and political activists have been imprisoned or organising political protests without authorisation. The applicant does not claim to be a member of MB, a blogger or a political activist or organiser. There are millions who use [Social Media] in Egypt. DFAT[7] advises that social media has offered a platform for more diverse expressions of opinion among Egyptians. Supporters and critics of the government, including MB and Morsi supporters, frequently express their opinions in blogs and on Facebook, Twitter and similar platforms. Likewise, protests and marches are openly planned online. While these social media platforms are almost certainly monitored they are difficult for a government to censor, and DFAT understands that individuals can generally express their views without state-sanctioned interference. DFAT also stated that
3.74 However, some individuals have been attacked by other social media users for their
dissenting views.
And … some users of social media have had material they have posted used against them as evidence. Although DFAT is not aware of any bloggers being prosecuted for posting purely political commentary since Sisi took power, some prominent bloggers have been prosecuted for violations of the Protest Law...
[6] [Deleted.]
[7] DFAT Country Information Report, Egypt, 24 November 2015

DFAT assessed that political activities conducted by Egyptians abroad are usually noted by Egyptian embassies or other officials. However, only particularly high-profile cases (i.e. those that gain media notoriety in Egypt) are generally of interest to Egyptian authorities. Lower profile political activists may be questioned on return to Egypt, but are unlikely to be detained or suffer significant harm. I am of the view that were returning Egyptians from abroad harmed for posting on [Social Media] some mention would have been made in independent sources including DFAT, US State Department and Amnesty International.
The applicant does not claim to be a blogger, he did not belong to any political party or movement, he did not organise any anti-government activity, he only claims to have had a few followers all of whom are his friends and his only non-[Social Media site] activity was expressing his views to his friends when they met face to face in Australia, by way of social engagement. In light of the independent evidence, cited above, I do not accept as plausible that the Egyptian authorities would seek to harm the applicant for posting on a [Social Media] page. It follows that I do not accept that the applicant’s family have been threatened by the Egyptian authorities due to his activities on [Social Media].
I also note that fake or anonymous [Social Media] accounts can be created with enough friends and activities to look convincing[8]. Fake [Social Media] fans are sold by the thousands on sites that promise a quick delivery time, and some even claim that the fans are real people. Buying and selling [Social Media] fans is a multi-million dollar industry[9].
[8] [Deleted.]
[9] [Deleted.]
When I accessed the [Social Media] page, submitted to the Department, a political cartoon [an image of the Egyptian authorities [conducting an action]] claimed to have been posted [in] July 2013[10] and again [in] May 2014, was not visible. Nor were [Mr A’s] threats, claimed to have been posted [in] May 2014, visible. When put to the applicant he said they are examples of what happens. In light of some of the applicant’s posts on [Social Media], as submitted to the Department, not being visible on [Social Media] when I accessed it and in light of the independent evidence that indicates that fake or anonymous [Social Media] accounts can be created with enough friends and activities to look convincing and in light of my findings that the applicant is not a witness of truth, I do not accept that the applicant posted anti-government cartoons or anti-government or anti-military views on [Social Media] in the public domain.
[10] [File number] Folio 67
The applicant claims that as a consequence of posting anti-government material on-line on [Social Media] he was reported by a friend to a person in Egypt who has made threats against him and his family have been threatened. I note that fake or anonymous [Social Media] accounts can be created as discussed above. I have considered a document dated [in] May by [Mr A] that states “[in a Social media post response, that a person claimed to have reported the applicant to Egyptian officials, and threatened him.]”. I have also considered a document by [Mr B] dated [in] April that states “ [a social media post from a named person asking the applicant by a variation of his name, and with threats, not to again add opinions about Egypt’s politics on the writer’s page.]”. I place no weight on these documents because the applicant has demonstrated that he is able to research Internet sites, blogs and contact persons to provide any information required to support his claims including arranging false information, as he did for PVA1. I do not accept that the applicant shared anti-government [Social Media] posts to [Mr B’s] [Social Media] page nor do I accept that he posted [Mr A’s] threats on [Social Media].
I accept that a high profile Australian journalist was arrested in Egypt. The applicant is not a journalist.
The applicant claims that he discussed with friends in Australia his views, in a social engagement. As I do not accept that the applicant has views adverse to the government and the military of Egypt, I reject his claims he expressed those views when meeting in a social engagement situation in Australia or would seek to do so on his return to Egypt.
I have considered the arrest warrants that state that the applicant is charged with “writing and incitement against the institutions of the Egyptian state through social media”. I discussed with the applicant information about fraudulent documents in Egypt [DFAT[11]] that state that “although falsification of documents is prohibited by law in Egypt, DFAT advises that it is possible to obtain false copies of a range of official documents”. I note DFAT advises that it is possible to also obtain counterfeit and/or bogus documents, as well as genuine documents that have been obtained by way of corruption.
[11] DFAT EGY39023,
I have considered the applicant’s request that the Tribunal and the Australian government verify the arrest warrants. DFAT[12] has advised in 2011 that in relation to documents signed by the Office of the Public Prosecution the “Ministry of Justice would be required to see the name of the client and therefore post is unable to verify the document”. Due to my concerns about the applicant’s credibility, the need to identify the client to the authorities and the potential delays in waiting for a response and in light of DFAT advice that it is possible to obtain false copies of a range of official documents and genuine documents can be obtained by way of corruption[13], I do not propose to attempt to verify those documents.
[12] DFAT EGY39022
[13] DFAT EGY39022
In light of the possibility of obtaining false/bogus documents in Egypt as discussed above, and the applicant previously obtaining bogus documents for PVA1, I place no weight on the arrest warrants. I therefore am satisfied that the applicant does not face a real chance of harm due to being charged with the offence of ‘writing and incitement against the institutions of the Egyptian state through social media’. I am also not satisfied that the Egyptian authorities hold information about the applicant that he will be arrested upon his return to Egypt.
I have considered the evidence provided by way of Statutory Declaration by [Friend A] who claims that their friend, [Friend B], has been arrested on his return to Egypt from [Country 1] due to posting some online anti-governmental statements. The applicant has provided no independent evidence to support this claim and I have found no independent evidence to support this claim. As I do not accept that the applicant is a witness of truth I place no weight on this information provided
I do not accept that the applicant’s psychological state of mind is unstable due to his fear of being returned to Egypt. When I asked the applicant about his health at the Tribunal hearing he outlined his issues with [his specific medical conditions]. He made no mention of any psychological problems.
The applicant has claimed he has [the two medical conditions] for which he is receiving treatment in Australia. The independent evidence before me indicates that Egypt offers a universal healthcare system and whilst quality of caring in public hospitals is far lower than in private and foreign clinics, many mosques also provide medical services that are superior to those offered in government run hospitals and clinics[14]. I am satisfied that there is available in Egypt treatment for the applicant’s medical condition. I also have no independent evidence available to me to suggest that a person of the applicant’s profile ie. a person who has returned after studies abroad would not be able to access treatment for his medical condition in Egypt. I am of the view that were it the situation it would be known to independent sources such as US State Department, Amnesty International and DFAT.
[14]
Egypt has a population of over 92 million[15]. I accept that the general situation in Egypt is unstable, unsafe and risky. There are lots of bombings and killings in Egypt, and a heightened threat of terrorist incidents. These incidents affect the majority of the population. As I do not accept that the applicant has an adverse political opinion in Egypt and as I have no evidence before me to suggest that the applicant’s Australian partner has an adverse political opinion in Egypt I find remote the chance that the applicant and/or his partner will suffer significant harm in Egypt or that the life of the applicant’s partner is not safe if they were to return to Egypt.
[15]
The applicant has stated that he cannot leave his wife at home in Sydney and that she suffers from an illness. As no medical information has been provided, I am not satisfied that the applicant’s wife has an illness. I accept that in some circumstances interference with family relationships may amount to serious harm. In MIAC v SZQOT [2012] FCAFC 141 the Court noted in effect that a decision maker may have to consider “whether any psychological harm suffered by [an applicant] as a result of being separated from his family was a consequence of persecution of a kind that would give rise to protection obligations under the [Refugee] Convention”. Nicholas J later said: Depending on the facts of a given case, it may be open to a decision make to conclude that a husband had a well-founded fear of persecution if, for example, widespread discrimination against couples on racial or religious grounds made it impossible for the husband to live with his wife without fear of them being harassed.
The applicant did not expressly claim to fear psychological or mental harm as the result of having to live in Egypt without his wife. On the face of it, there would be no restriction on the applicant's wife returning to Egypt with him and no adverse consequences for them if they did. I do not accept that the applicant has a well founded fear of substantial harm if forced to return to Egypt, now or in the reasonably foreseeable future, for reasons of the applicant being required to leave Australia and be separated from his partner because the definition of “substantial harm” relates to harm which may take place in the receiving country and not acts of the Australian government.
I have considered all of the applicant’s evidence singularly and cumulatively. I do not accept the applicant is a witness of truth. I am not satisfied that the applicant was an anti-Egyptian activist in Australia via [Social Media] and talking to friends in private meetings or that he is perceived to have an adverse profile as an anti-Egyptian activist in Australia. I do accept that the applicant will express his anti- government and anti-military views on his return to Egypt.
Having regard to my findings that the applicant is not a witness of truth who had no adverse political profile when he lived in Egypt or in Australia, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.
CONCLUSIONS
The Tribunal has considered the applicant’s claims under complementary protection. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
Lilly Mojsin
Member

Annexure A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

100. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
101. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
102. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
103. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
104. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
105. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
106. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
107. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
108. In accordance with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, an applicant who had previously applied for and had been refused a protection visa on the basis of one of these criteria was enabled to make a further application for a protection visa on the basis of one of the other criteria. Thus an applicant who had previously been refused a protection visa on the basis of the Refugees Convention (paragraph 36(2)(a) of the Act) was able to apply for a protection visa on the basis of the complementary protection criterion (paragraph 36(2)(aa) of the Act).
109. Consistent with the reasoning of the Full Court of the Federal Court in that case, such an applicant can only have their further application considered on the basis of the criterion or criteria in relation to which they have not previously made an application.
Complementary protection criterion
110. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
111. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

112. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
113. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2016] AATA 3813

27 April 2016

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