1412919 (Refugee)

[2015] AATA 3983

1412919 (Refugee) [2015] AATA 3983 (4 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412919

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Shahyar Roushan

DATE:4 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 04 September 2015 at 2:16pm

CATCHWORDS

Refugee – Protection visa – Egypt – Political opinion – Member of Muslim Brotherhood and the Freedom and Justice Party – Campaigning and financial contribution – Police custody and imprisonment – Credibility issues – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

1. 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).

2. The applicant, [an age] year old citizen of Egypt and a Sunni, arrived in Australia on a [temporary] visa [in] June 2013. He applied for a protection visa on 24 September 2013.

3. In his protection visa application, the applicant claimed that he is an active member of the Muslim Brotherhood and the Freedom and Justice Party (FJP). His activities included organising, packaging and delivering ‘assistance packages’ to the poor. During the election he was involved in campaigning for the party and assisting the ‘poor, illiterate and ill’ to vote. He is also a financial contributor to the party. In 2010 he was delivering goods to a prison when an inmate recognised and tried talking to him. On the same night he was taken into police custody and interrogated. He was imprisoned for 2 days. He was again interrogated about the same incident two months later. Subsequently a ban was placed on the applicant’s [business] and he was unable to [conduct his business] for a period of time. The ban was lifted after he paid bribes.

4. He claimed that before Morsi came into power he was ‘heavily involved in Egypt’s revolution’. He met ‘a lot of opposition’ from community members and police officers. During this time he was detained for two days in relation to his activities with other members of the Muslim Brotherhood who had been released from prison. For ‘a period of time’ he was monitored closely. He travelled to Australia as opposition towards the Muslim Brotherhood increased. After Morsi was ousted, many of his associates have been put in prison because they were actively promoting and supporting the Muslim Brotherhood.

5. The applicant was interviewed by a delegate of the Minister on 17 February 2014. Where relevant the applicant’s evidence at the interview is discussed below.

6. The delegate refused to grant the visa on 23 June 2014. The delegate did not accept that the applicant is of interest to Egyptian State Security Forces because he was questioned previously or that because he is a member of the Muslim Brotherhood.

7. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

8. The applicant appeared before the Tribunal on 26 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant the applicant’s evidence at the hearing is discussed below

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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).

11. 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.

12. 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’).

13. 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 (DAFT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report - Egypt, published on 28 January 2014. The Tribunal has also had regard to DFAT Thematic Report on Egyptian Copts, published on 28 January 2014.

    Analysis, Reasons and Findings

14. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Egypt and, if not, 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 that he will suffer significant harm.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the unpersuasive nature of some key aspects of his claims and other reasons detailed below. 

17. The applicant claims that he would be arrested, detained and mistreated in Egypt because he has a security file and had come to the attention of the authorities. He has claimed that in 2007 he was briefly interrogated by Egypt’s State Security because he had a long beard and prayed in a mosque. He claimed that this resulted in a file being opened in the State Security. He conceded at the hearing that millions of Egyptian males with beards had also prayed in mosques and therefore had similar ‘files’. The applicant’s evidence, however, suggests that his fears of returning to Egypt have their genesis in his claimed arrest and brief detention on two separate occasions in Egypt in 2010.

18. The applicant has claimed that in 2010 he delivered some blankets to a [prison]. During this visit he shook hands with and spoke to a [Mr A], an acquaintance and a prominent member of the Muslim Brotherhood. This encounter led to the authorities questioning him on two separate occasions in 2010. He also claimed that it was this encounter that ultimately attracted accusations of financing a terrorist organisation which led to a further arrest and brief detention in February 2013.  The Tribunal finds these claims highly implausible.

19. The applicant stated at the hearing that the delivery of the blankets was part of the charity work carried out by the Muslim Brotherhood. He stated that the activity was coordinated by [an] MP.  When it was put to him that the Tribunal considered it implausible that the authorities would permit Muslim Brotherhood supporters to deliver blankets to Muslim Brotherhood prisoners detained by the state, he stated that the activity was coordinated by [an] MP, a leader and prominent member of the Muslim Brotherhood. He stated that [the MP] had obtained a permit. The applicant was unable to meaningfully explain why the blankets were not simply delivered to the prison authorities for distribution.  As it was put to the applicant at the hearing, the Tribunal finds it highly implausible that a member of the public and a Muslim Brotherhood supporter would be able to walk around the prison to distribute blankets. The Tribunal also considered it highly implausible that the applicant alone had attracted accusations of financing [Mr A] or terrorist organisations merely on the basis of having greeted him during the prison visit. Finally, the Tribunal considers it highly implausible that he would be able to casually walk around the prison and converse with a Muslim Brotherhood prisoner, whom the applicant claimed was accused of links with terrorism. The applicant stated that he could go in and speak to the prisoner because there was a permit. 

20. The country information before the Tribunal suggests that in 2009 and 2010 the government had arrested and detained hundreds of MB members and supporters without formal charge or trial. Prison conditions and conditions in detention centres were poor and that visitors' access to detainees held under the Emergency Law, such as Muslim Brotherhood members, were limited.[1]

    [1] US Department of State, Country Reports on Human Rights Practices 2009 – Egypt, 11 March 2010; and US Department of State, Country Reports on Human Rights Practices 2010 – Egypt, 8 April 2011.

21. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant’s claims regarding his visit to the prison in 2010, his encounter with [Mr A] and subsequent detention and interrogation on two occasions are credible. The Tribunal does not accept these claims.

22. The applicant has claimed that he was arrested and detained for two days in February 2013 on the basis of the accusations levelled against him in 2010, namely that he was financing a terrorist group. As the Tribunal has rejected the applicant's claims that he had attracted these accusations in 2010, the Tribunal does not accept that he was arrested, detained and questioned in February 2013. In reaching this view, the Tribunal has also had regard to the inconsistencies in the applicant’s evidence regarding this claim.

23. First, in his application for a protection visa the applicant claimed that after Morsi came to power he was detained for two days in relation to his ‘activities with other members of the Muslim Brotherhood who had been released from prison’. When it was put to him that this appeared to be different to his evidence at the hearing that he was arrested because he was accused of financing terrorist organisations, he said they are the same thing. When he was arrested they accused him of financing terrorist organisations. The applicant also claimed in his application for a protection visa that after his arrest and detention in 2013, he was monitored closely for ‘a period of time’. At the hearing, however, he stated that he felt he was being monitored after his encounter with [Mr A] in prison in 2010. When asked how he knew he was being monitored, he said it was just ‘an internal feeling’. When the inconsistency in his evidence was put to him, he said he had just felt that he was being monitored. The Tribunal does not find the applicant’s explanations for the inconsistencies in his evidence persuasive and is of the view that the applicant has improvised his evidence.

24. Secondly, in his application for a protection visa, the applicant had stated that after he was arrested and interrogated for the second time in 2010, a ‘ban’ was placed on his [business] for a period of time and he was only able to lift the ban by paying bribes. At the hearing, however, the applicant claims that a container containing his [merchandise] was searched and temporarily halted after he was arrested in 2013. When this inconsistency was put to him at the hearing, he stated that the ban on the container was placed in 2013. The applicant was unable to satisfactorily explain why he had stated in his application for a protection visa that this incident had occurred in 2010. In addition, at the hearing he expressly stated that the authorities searched the container and when they did not find anything, he was released. When asked if he had to do anything to secure the release of the container, he said no. When it was put to him that he had claimed in his application for a protection visa to have paid a bribe, he said he had. When asked why he had not mentioned this earlier, he said he thought the Tribunal had asked him if he had to do anything ‘legally’. The Tribunal finds the applicant’s evidence in this regard unsatisfactory and is of the view that his claims are not credible or reliable.

25. Thirdly, in his application for a protection visa the applicant had claimed that he was a financial contributor to the Muslim Brotherhood/Freedom and Justice Party. He had also claimed that he was involved in ‘campaigning for the party and assisting the poor, illiterate and ill to vote’. At the hearing the applicant stated that he was only involved in distributing donations and that he had no involvement in any other activities. When his written evidence was put to him, he stated that he had helped people during the election campaign. When asked why he had not mentioned this when expressly asked about his activities, he said he did not consider these activities to be political because he did not distribute pamphlets. Indeed, the applicant acknowledged at the hearing that he was not a member of the Freedom and Justice Party and that he considered himself a supporter, and not a member, of the Muslim Brotherhood. The Tribunal does not find the applicant’s explanations for the inconsistencies in his evidence persuasive and is of the view that the applicant’s evidence is not reliable.

26. Finally, the applicant arrived in Australia [in] June 2013. However, despite claiming that he had been arrested and detained on a number of occasions in the past, he did not apply for a protection visa until 24 September 2013. When this was put to him at the hearing, he stated that he was waiting to see what will happen. If Muslim Brotherhood were still in power he would not have applied for protection. The applicant’s delay in lodging his application for a protection visa casts doubt on the genuineness of his fear and the credibility of his evidence.

27. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve an immigration outcome. The Tribunal, therefore, does not accept that the applicant was a member or supporter of the Muslim Brotherhood or the Freedom and Justice Party. The Tribunal does not accept that the applicant was involved in any activities in support of or in association with the Muslim Brotherhood or the Freedom and Justice Party, including charitable activities. The Tribunal does not accept that he had financially contributed to the Muslim Brotherhood. The Tribunal does not accept that the applicant had played any role in distributing goods or blankets to prisoners [or] that he had, in any way, come in contact with Muslim Brotherhood prisoners in Egypt. The Tribunal does not accept that the State Security had opened a file in relation to him. The Tribunal does not accept that he was arrested, interrogated or detained in 2010 or 2013 in Egypt. The Tribunal does not accept that a ban was placed on the applicant’s [business] or that he was unable to [conduct his business] for a period of time. The Tribunal does not accept that the ban was lifted after he had paid bribes. The Tribunal does not accept that he was monitored by the authorities. The Tribunal does not accept that he had come to the attention of the Egyptian authorities in Egypt or that he was of any interest to them prior to his departure for Australia in June 2013.

28. The applicant claimed at the hearing that he will come to the adverse attention of the authorities because of his departure from Egypt [in] June 2013, just before the military coup, and his absence from Egypt since then. As it was put to the applicant at the hearing, the Tribunal has found no persuasive information to suggest that Egyptian nationals who had departed Egypt prior to the 3 July 2013 removal of President Morsi by the military had faced adverse attention or treatment upon returning to Egypt. It was also put to the applicant that according to DFAT, people who return to Egypt after several years’ absence will not face any adverse attention on their return on account of their absence. Likewise, DFAT assesses that failed asylum seekers will not face adverse attention on account of their failed application for asylum when they return to Egypt. DFAT states that many thousands of Egyptians enter and leave the country every day. Those Egyptians that out-stay their work or tourist visas in other countries are regularly returned to Egypt with no attention paid to them by authorities.  The applicant disputed the accuracy of the information and stated that those who left Egypt before 3 July 2013 would not return to Egypt. He stated that there are media reports that support his claims. The applicant was invited to submit evidence in support of his claims by 2 September 2015. He failed to do so. The Tribunal prefers and relies on the information provided by DFAT and considers it to be reliable. The Tribunal is not satisfied that the applicant faces a real chance of persecution by the authorities or anyone else in Egypt for having departed Egypt [in] June 2013, for having stayed in Australia since then or for having sought asylum in Australia.

29. The applicant has made vague and general references to the security situation in Egypt. The Tribunal accepts that Egypt is currently experiencing some instability, political violence and deterioration of law and order. However, having considered all the applicant’s circumstances, The Tribunal is not satisfied that the general security situation in Egypt would expose the applicant to a real chance of persecution for a Convention reason in that country.

30. For the reasons outlined in paragraphs 16 to 26, the Tribunal does 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 arising from his real or perceived political opinion, his claimed activities, his religion or any other factor arising from his circumstances.

1. For the reasons set out in paragraph 28, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in Egypt for having departed Egypt [in] June 2013, for having stayed in Australia since then or for having sought asylum in Australia.

2. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the lack of security and instability the applicant fears are faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Egypt as a result of general lack of security and instability.

3. Having carefully considered the applicant’s evidence, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

4. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant has been harmed in the past in Egypt or that, if he were to return to Egypt now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in Egypt. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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

7. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Shahyar Roushan
   Senior Member