1413642 (Refugee)

1413642 (Refugee) [2016] AATA 3534 (8 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1413642
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Rachel Westaway
DATE:8 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 08 March 2016 at 4:39pm

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 who claims to be a citizen of Egypt, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] July 2014.
The applicant appeared before the Tribunal on 7 March 2016 to give evidence and present arguments. The Tribunal hearing 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
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.
The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant applied for a protection visa [in] February 2014. He supplied a copy of his passport as evidence of his nationality and made the following protection claims as listed below.
The applicant claims he has previously worked as [occupation] in Egypt. He came to Australia with a famous [Egyptian]. He stated that he is a supporter of Moslem Brotherhood and he fears returning to Egypt on the basis of ongoing mistreatment and persecution of the Moslem brotherhood members. The applicant confirmed that he has not faced harm but has been threatened and fears harm in the future based on his support of a membership of the Moslem brotherhood. He claims he fears the military and supporters of the military.
The applicant also supplied a statutory declaration claiming he wishes to be considered for a protection visa on the basis of his political beliefs and he also wishes to be considered for complementary protection. He stated he was born on[date]. At the time of the hearing the applicant is [age] years old. He claims he was born in and resided in [a city in] Egypt. He claims to be a Sunni Muslim. He claims to be married and has a dependent[child]. He confirmed he came to Australia [in] February 2014 on a [temporary] visa. His application was made 12 days later.
The applicant confirmed his wife and [child] reside in Egypt and his parents and [siblings] reside in[another country]. The applicant stated he has one [sibling] who lives permanently in Australia.
The applicant claimed in his statutory declaration that he is ‘a democracy supporter but does not support any particular political party’.
The applicant claims he attended political rallies denouncing the military attack on democracy and that whilst he doesn’t support Morosi, he was opposed to military coupes which remove democratically elected people from office. The applicant stated that the two rallies we at [State 1] and two in [City 2] – ([Location 1] and [Location 2]). He claims that during the [Location 1] demonstration [in] August 2013 he suffered a superficial [injury] which required medical treatment but his [friends] who accompanied him there were killed by the military.
He claims he escaped injury and arrest at the other rally in[State 1].
The applicant claims his wife has stated that the local authorities are questioning and detaining people who participated in the rallies at[State 1]. He claims that a summons for his arrest by local authorities is in place. He claims he is imputed to being a member of a radical Islamic organization.
He stated that this will lead to arrest and charges under new Egyptian terrorism and anti-protest laws. He fears he will be detained and will not be able to practice his religion freely without further arrest as it will attract adverse attention. He claims his wife will need to wear full Islamic dress.
He claims he will be denied effective protection.
The applicant provided an ‘Attestation’ dated [July] 2014 stating that the applicant is a hard-line Islamist individual and is wanted for security and judicial reasons for breaking the law through incitement and resisting authorities. It claims he is one of the leaders who support congregations and demonstrations that are anti-state authorities.
The application was refused by the Department [in] July 2014. The decision maker stated that the applicant provided inconsistent information in his written claims versus his oral evidence and the decision maker had concerns about the authenticity of the applicant’s evidence in relation to his summons. Furthermore the applicant did not provide any further information regarding his religious views although he claims he is a Sunni Muslim, he provide no evidence that he has experienced harassment or harm. In summary the delegate stated that the applicant made “many contradictions in regards to his claims, written and spoken” and the delegate rejected the claims in their entirety.
The applicant applied for review of the decision. The applicant provided a copy of the delegate’s decision.
On 1 March 2016 the applicant’s representative submitted a statutory declaration by the applicant. The declaration can be summarised as follows. The applicant has resubmitted a document which he stated forms part of his claims and which he believes was not considered by the delegate. It is the attestation dated [July] 2014 as detailed above.
The applicant stated that his inconsistencies at interview stemmed from the fact that he was nervous and has experienced traumatic events in his life. He referred to the death of his first wife and [age] year old [child] and the death of his colleagues at rallies.
He also stated that he was able to receive a new passport because convictions had not yet been recorded against his name.
A hearing was conducted via video link on Monday 7 March 2016 with the Administrative Appeals Tribunal. The hearing was conducted with the assistance of an Arabic interpreter.
Independent Country Information
The Tribunal has had regard to Independent country Information. DFAT Country information Report, Egypt, 24 November 2015 states that in January 2011, there were wide spread protests against the Mubabarak regime. Mubarak resigned on 11 February 2011 and the military retained interim control. Presidential elections were held in June 2012 and Morsi, the Freedom and Justice Party – the political wing of the Muslim Brotherhood was elected President. Massive nationwide protests were held and led to 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 was elected present in an election held from 26-28 May 2014.
[information deleted].
A focus on security by the Sisi government has been directed at security forces but bystanders have been killed and injured. However large scale political demonstration have reduced considerably as of 23 November 2013 when the Protest law was introduced significantly restricting the ability of Egyptians to hold public meetings, processions and demonstrations in public places. On 25 December 2013, the Muslim Brotherhood was declared a terrorist organisation under Article 86 of the Egyptian Criminal Code. Those found to be members may incur penalties of up to 5 years imprisonment. On 29 December 2013 an interim Cabinet spokesperson affirmed that all MB members were subject to Article 86, under which those engaged in terrorist activities face life imprisonment with hard labour or the death penalty. Mass trials with those charged with participating have involved not only members but also supporter and sympathisers and also those in the vicinity of protests. On 24 March 2014, a court in Minya sentenced 683 Muslim Brotherhood (MB) supporters to death. DFAT assesses that MB members who continue active engagement within the outlawed party are highly likely to be arrested and prosecuted. Ordinary inactive members, party supporters and those with family links to MB members face lower risk of arrest but are still likely to come under close attention of authorities and be subject to surveillance.
Evidence taken at hearing
The applicant confirmed that he had no assistance in filling in his visa application. There is nothing he wishes to change in his application.
The Tribunal asked the applicant whether he understood why the decision was refused. He said there was no specific reason. The Member explained the decision to the applicant.
The applicant confirmed he is [age] years old. The applicant stated he came to Australia [in] February 2014. He came with a [group] as he is[occupation].
The applicant stated he applied for his protection visa because he was confident that he will be requested by the police in Egypt.
The applicant stated that he has a father and mother and[siblings]. His parents are in [another country] with his [siblings] and have permanent residence and live there. He confirmed his [siblings] studied in the [the other country] and one [sibling] is living in Australia and is married to an Australian.
The applicant claims that his wife and [child] died and he has remarried and had a [child] and he has divorced her before he came here. They did not reconcile. He stated he has nothing in Egypt to return to. The applicant stated that his first wife died of a [medical condition] and his [child] died of an illness.
The applicant’s grandfather lives in Egypt with[a relative].
The applicant was asked to provide further details about why he applied for protection. He stated he is a Sunni Muslim and he loves his faith. He stated that he supports democracy. However he stated that he was a protestor and the police are after all participants in the rallies he attended.
He stated that the protests he attended were in [Location 1] and [Location 2]. At[Location 1], he claims he was [injured] but he was lucky as [friends] were killed. He stated that they were killed when the shooting happened however he stated that they were not shot, they were trampled to death and suffocated. The police and thugs were shooting. It was not military and the applicant stated that it was smoke guns.
The applicant stated that he had relatively minor [injuries]. He stated he has suffered temporary memory loss. The Tribunal asked if he had treatment and he said he had medication prescribed to him that assisted him with his memory loss. He stated that it had improved and it is not as much of an issue but it is not 100% but he is fine. The applicant stated that he was also prescribed antibiotics and other things but didn’t want to take the other medication because he was exercising and playing sport. The applicant also stated that when he was in Egypt he was working in a big [company] but he lost his job when the issues with the riots and the police being after him were discovered. His company was called[name deleted]. The applicant confirmed he had two jobs. One was as [occupation] in [an] industry and he would be called to [events] to work. This would at times be in the evenings and weekends.
The applicant was asked to explain the protests that he attended. He stated that the first protest was in[State 1]. There were [number] people involved. He was asked why he attended and he said that he said he saw many people protesting and everyone knew it was on and he just decided to follow. He said it was promoted on the internet. He also confirmed that he was protesting about the discrimination against prisoners and how they were treated. The Tribunal asked the applicant what he knew about the prisoners and how they were treated. He stated that there was no justice for people on the streets and innocent people were taken and persecuted. The applicant stated that he couldn’t recall the date of the first protest. The applicant stated the next protest he attended was [Location 1] in the month of August (it started in June but he didn’t join until August). He said there was no justice on the President’s removal and it went against democracy. The protest went over many months but he attended from [date] August to approximately[date] August. He stated that he sat in tents and it was a sit in. The Tribunal asked about the tents and how many there were and he said it was full with tents. There were thousands of tents. He joined his friends in the tent. He said there were 6-7 people in the tent. He said other tents would have up to 20 people. The applicant stated that he was working however it was just light work. It was the month of Ramadan. He claims he slept in his car. The Tribunal asked where his wife was. The applicant stated that he wasn’t married and didn’t have his child. The Tribunal question the applicant given it was aware he had remarried and had a child. The Tribunal noted that the applicant’s evidence was at times confusing and disjointed. After further enquiries that Tribunal understood the applicant had divorced his second wife and as such had little to do with her. The Tribunal also noted throughout the hearing that it needed to clarify several points where evidence appeared contradictory until detailed clarification was sought. He claims the purpose of the protest in [State 1] was to protest against[issues].
The applicant was asked when he married. He stated that he was married in 2011-12 but he cannot recall exactly. The protests were in 2013. The applicant stated I did not ask that question. He was previously married. He then stated his wife was targeted because she wore a head scarf so she took it off and wanted to live elsewhere. He stated that during the time of the protests he was divorced. And he requested more papers from the lawyer. Asked what sort of papers he said he didn’t know. He just asked for any. The Tribunal spent some time asking him to confirm and he was unable to explain what he meant. The Tribunal asked if he divorce and he said no and he didn’t have money to pay to he didn’t help.
The applicant stated that he had [friends] who died in the protests and a friend who was arrested.[Names deleted]. The applicant claims he knew these people because they worked in a [company] doing similar work to him. The applicant stated that during the protest when his friends were killed, everyone was running aimlessly and they all dispersed. He learnt that they died as their families received them and he was also injured. The applicant stated that he was hit by bricks and rocks. The applicant stated that he was so afraid that he did not attend the protests after this. He claims this was it for him.
The applicant confirmed that he did go to one protest in [Location 2] but this was pre the [Location 1] events. This was also for the illegal removal of the President and violation of democracy. He attended this by himself.
The applicant said that he is frightened of police, courts and tribunals and stayed away all other protests.
He said the police raided his house twice when he was[out]. He said they must have known he had been involved in these protests. The applicant stated thought the hearing that he is not a member of the Muslim Brotherhood.
He continues to reiterate that he will not return to Egypt. The police raids occurred in November 2013. They raided twice. He was asked twice if people were there at the time. He stated his ex-wife was at home. They lived in different levels of the building and he sold his place. Police knocked and his ex-wife said he wasn’t there. The Tribunal asked if they went into the house. He said the glass was broken. He said no charges were laid against him. He said the charge was laid in the month of June 2014. He said he was under an arrest order of the Egyptian police.
He said he tried to study [Course] in [Australia] but he didn’t because of the visa he was couldn’t enable him to do it and he had to pay his own money.
The Tribunal put to the applicant that it seems odd that police would knock on the door and also break a window. The applicant was asked to explain. He said his wife heard them break the window and then neighbours also confirmed the police did this, so that is why his ex-wife came down and looked at what was going on. The applicant stated that his ex-wife is always there. He explained that they live in the same housing block but she has a separate entrance. He said there was no warrant for arrest but the applicant feared that they wanted to interrogate him. He believes this to be the case because the acquaintances he attended the rally in [Location 1] with were arrested.
He stated that the first raid occurred in the middle of November 2013. He said the second raid occurred in the same month after ten or twelve days after the first raid. He stated he wasn’t at home at the time of either raid – he was lucky he was again out [working]. He stated that he often spends two days out of the house and he gets permission from the [company].

The Tribunal put to the applicant that he said he only went to the rally with [friends] and he said no there were others but only [number] died. He said there were [others] and these men were arrested and he never saw them again. He only knows their first names. He said they must have told him that he worked in the [country]. The Tribunal asked him their names and he said he only knew their first names. He listed [names] but he could not recall the fifth person. He stated he knows these five men because they work in the [industry] and he worked in[industry]. He said they knew[name ]. The Tribunal asked the applicant if these men were also in the tent at the rally and he said no.
He confirmed to the Tribunal that they were all arrested but not in one day. The applicant stated he is sure they did not leave Egypt but he doesn’t know because he cut ties very quickly.
He said they were taken out of their houses and he stopped seeing them at work and he heard from work mates. Some were members of political parties and the police thought that he was too.
After the police raided for the 2^nd time, he said he knew they were after him, one of the police stated that there were no charges but they rounded up individuals they could find who they believed went to the rallies and were considered dissidents. He said he had no intention to come to Australia but it was requested to work [in] Australia and he was worried on his way to the airport. He thought they may have something against him and he’ll be arrested. He claims nothing was found against him and the police regarded him as a runaway. Therefore it is impossible for him to return. That’s why he wanted to live in[Australia]. He said he is happy to live in[Australia]. He stated that he has a good relationship with everyone that he meets.
He said his job and home is there. The Tribunal asked him why he sold his house before he left and he said that he did for financial support in his travels. He was invited to Australia for work. He sold his home as he has nothing left in Egypt – he lost his job because they found out that the police were after him. They didn’t want to keep an employee who was in trouble with the police.
The Tribunal asked the applicant how and why he believes the police are after him and how did they get his name. The applicant stated that he thinks the five men he knows dobbed him in as someone they attended the rallies with.
The Tribunal asked the applicant about the attestation that he received and sent to the Department and the Tribunal detailing his claimed involvement in the rallies and naming him as a major leader who supported congregations and demonstrations that are anti-state authorities. The applicant stated that he received this from his lawyer in Egypt. He claims he does not have the original and his lawyer will not assist him as he has no money to pay him so he cannot get it. He did state he was able to provide evidence of the email from the lawyer and the power of attorney to show his lawyer was able to obtain this on his behalf.
FINDINGS AND REASONS
The Tribunal accepts based on the evidence before it, namely a copy of the applicant’s passport, that the applicant is a national of Egypt and it has assessed his claims against Egypt as his country of Nationality for the purposes of the Convention and as his returning country for the purposes of s.36.(2)(aa).
The Tribunal has considered the detail in which the applicant has provided descriptions about the rallies in which he claims he attended in Egypt in 2013, namely those in[State 1], [Location 1] and [Location 2]. The events, dates and details correlate with the independent country information before the Tribunal. The Tribunal has noted that delegates concerns regarding the applicant’s inconsistent answers in the initial interview which contributed to the credibility concerns held by the delegate. The Tribunal also noticed at times answers provided by the applicant to be general and vague. The Tribunal spent a considerable amount of time asking the applicant to clarify and be more specific. The Tribunal has taken into consideration the applicant’s claims that his memory is poor and he has experienced health issues. The Tribunal accepts this and pursued very specific questioning of the applicant. This assisted in obtaining greater detail about the applicant’s personal account of the rallies and his experience in the tents, the weapons used by the police and the manner in which the applicant’s friends died. The Tribunal was also able to obtain further clarification on the misleading dates the applicant provided the delegate. The Tribunal accepts that the rallies went for several months and the exact date was hard to recall by the applicant. The Tribunal accepts that the applicant attended rallies in[State 1], [Location 1] and [Location 2].
The Tribunal also accepts that the applicant had [friends] who were killed in the rallies and that he was seen at the rallies by work acquaintances. The detail about the people the applicant knew at the rallies and his unembellished explanations leads the Tribunal to conclude that the applicant is a credible witness and he did attend rallies and was seen by people he knew.
The Tribunal has also considered the applicant’s claims that he has been targeted by police who have raided his home on two occasions. The Tribunal finds that it is plausible that the applicant’s acquaintances saw him at the rallies, were arrested and were forced to name others in attendance which then led the police to raid the applicant’s home twice within two weeks. The Tribunal accepts that the police raided the applicant’s home on two occasions looking for him.
The Tribunal has considered the country information before it as detailed above and accepts that it is quite plausible that the applicant was profiled as a person of interest. Specifically, the Tribunal notes that the Country Information states there were “mass trials with those charged with participating and they have involved not only members but also supporters and sympathisers and also those in the vicinity of protests. On 24 March 2014, a court in Minya sentenced 683 Muslim Brotherhood supporters to death. The Tribunal notes that the applicant stated he is not a member of the Muslim brotherhood and has no interest in joining a political party but, as he has described it, he has been profiled as a supporter. The Tribunal accepts that the applicant is profiled as someone who has attended the rallies.
The Tribunal notes that the applicant has provided a photocopied and translated [attestation] attesting that he is a hard-line Islamist individual and wanted for security and judicial reasons. It states that he supports congregations and demonstrations that are anti-state. The Tribunal has not had this evidence tested for its authenticity and is not completely satisfied with the applicant’s explanation on how it was obtained and why he is unable to provide the original. The Tribunal gives this minimal weight. However, the Tribunal does accept that the applicant attended the rallies and is profiled as a supporter and has had his house raided by police. The Tribunal accepts based on the independent information before it that there is more than a remote chance that should the applicant return to Egypt, that he could be targeted. The Tribunal notes that DFAT assesses that Muslim Brotherhood members who continue active engagement within the outlawed party are highly likely to be arrested and prosecuted. Ordinary inactive members, party supporters and those with family links to MB members face lower risk of arrest but are still likely to come under close attention of authorities and be subject to surveillance. Given that the Tribunal accepts that the police have raided the home of the applicant twice, it is quite possible that the applicant may face more severe punishment if he returns to Egypt now or in the near future. The Tribunal notes that 37 death sentences were delivered to MB supporters, 429 sentences of 25 years hard labour and significant fines. Further sentences were handed out including hundreds of sentences to death. The Tribunal also notes that prison conditions in Egypt do not meet international standards and are extremely over crowded.
DFAT Country Information Report – Egypt 24 November 2015 states that the constitution provides broad justification for civilians to be tried in military courts and there is no oversight mechanism for military courts and it is possible to be tried without a lawyer present. It also states that the Department of Interior Ministry conducts exit and entry checks and they are strictly enforced. The Tribunal does not accept that the applicant could return to Egypt and safely relocate.
The Tribunal finds that due to the applicant’s attendance at political rallies in Egypt in 2013 and his profiling as a supporter of the Muslim Brotherhood, the Tribunal accepts that based on the applicant’s imputed political beliefs there is a real chance that he may be arbitrarily detained or killed and as such he is likely to face a real chance of serious harm now or in the reasonably foreseeable future if he was to return to Egypt.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rachel Westaway
Member

[2016] AATA 3534

8 March 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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