1414769 (Refugee)

[2015] AATA 3294

1414769 (Refugee) [2015] AATA 3294 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414769

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Antoinette Younes

DATE:7 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2015 at 10:27am

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 who claims to be a citizen of Egypt, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 27 July 2015 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.

   THE LAW

4. 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.

5. 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).

6. 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’).

7. 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.

   BACKGROUND

8. In the delegate’s decision record provided by the applicant in support of the application for review, it is noted that [in] September 2006, the applicant arrived in Australia as the holder of a subclass 572 student visa. He applied for another student visa [in] October 2006 which was refused [in] November 2011. The refusal was affirmed by the MRT on 25 July 2013. The applicant sought Ministerial Intervention and [in] December 2013, Ministerial intervention was not considered. Between [September] 2013 and [January] 2014, the applicant held a number of Bridging E visas.

   CLAIMS & EVIDENCE

9. In the application for a protection visa, the applicant made the following claims:

   a.He comes from a strict religious family. When he was in Egypt, he was expected to pray five times a day and observe all Sunnah practices. His father ensured that he went to the mosque once a week to learn about the Koran and Sunnah.

   b.The year prior to coming to Australia, he began to question what he was being taught at the mosque. He discussed those issues with lecturers at University because the elders at the mosque could not answer him. The lecturers and the elders became angry with his opinions. He continued to practise Islam, but he was frustrated because he did not understand what he believed. Subsequent to his arrival in Australia, he practised the “minimal essentials required of me in front of my friends”.

   c.In late 2012, he met an Australian woman and their relationship became serious. Her questions about Islam opened a new wave of thinking for him. They started to use the Internet and read more and this is how he was introduced to the Koranism. They started to talk to elders and people at the mosque. When they were together, they received a good response but when he was alone, he was told that he was Kafir and his Christian girlfriend was leading him to hell. This was a turning point for him because in the Koran, there is reference to consulting with Christians and Jews. He became more convinced that he should follow the Koran and not what the people were saying.

   d.His relationship ceased but he continued to refine his beliefs. He currently does not believe in Sunni Islam.  He only believes in God and communicates through the Koran. Because of his beliefs and refusal to accept Sunni Islam, he has lost many friends. He has tried to make his family understand that this has resulted in anger on both sides.

   e.He fears that if he were to return to Egypt, he would be harmed, arrested and imprisoned. He would be harmed by the Egyptian authorities, the Islamic clergy, the community, and his family. He would be harmed because Sunni Islam is the only acceptable form of Islam. The authorities cannot protect him because they only accept Sunni Islam.

10. The Department interviewed the applicant in relation to his protection claims [in] June 2014. Amongst other things, the decision record indicates that [in] January 2014, the applicant attended an interview with the Department to discuss his circumstances in planning to depart Australia and to assess his application for a Bridging visa E. 

11. It is further noted that in the course of this interview, the applicant stated that his parents and family in Egypt are aware that he would be returning home, that he would live in a house that he owns in Cairo, and that he has no concerns for his personal safety in returning to Egypt despite current general unrest. 

12. The decision record also notes that the applicant has claimed that he became a Koranist in January 2013 and feared returning to Egypt on this basis, but he did not raise those concerns when he sought Ministerial intervention in September 2013, or with the [community] status resolution case officer in September 2013, or when he lodged his applications for Bridging E visas on several occasions immediately prior to the lodgement of the application for a protection visa. It is noted that those concerns were discussed with the applicant in the course of the interview.

    FINDINGS AND REASONS

    Country of nationality

13. On the basis of the available information, the Tribunal finds that the applicant is a national of Egypt.  He travelled to Australia as the holder of a passport issued by the authorities of Egypt, copies of which the applicant provided with the protection visa and review applications. The applicant made no claim to be a national of any other country.  

14. The Tribunal finds that the claims should be assessed against Egypt for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

    Who are Koranists?

15. The Australian Department of Foreign Affairs and Trade (DFAT) advises in its 2014 report[1] that there is a “very small number of Koranists in Egypt, thought to be less than 1000”. There is nothing in their manner to distinguish them publicly from the majority of Muslims in Egypt. They cannot be differentiated by the manner of dress or by the names, and they do not believe in an enclave.[2]  Koranists identify themselves as Muslims, not a particular sect or offshoot such as the Shi’ites. Koranists are referred to as such because they choose to follow the word of the Koran only, and they do not adhere to the Hadiths and other traditional sources of Islamic law[3]. Koranism originated in Egypt by an exiled Egyptian cleric, Dr Ahmed Mansour who is described as an advocate for democracy and human rights in Egypt.[4]  Under the Mubarak regime, Koranists were regarded as reformers and they were the target of attack by the government and were accused of having deviated from Islam. In 2010, DFAT reported that it was unaware of “any murders of Koranists” even though in earlier years, they were considered as apostates[5]. Similarly, in its 2014 report DFAT continued to report that it had no knowledge of Koranists being killed in Egypt and that were a Koranist’s religious beliefs to become known, this could lead to the same level of discrimination as Shias in Egypt, including in employment, societal discrimination but all would heavily be dependent on one’s level of education and socio-economic situation.[6]

    [1] DFAT, Country Report Egypt, 28 January 2014

    [2] Ibid, at page 6

    [3] Egypt: 2010 International Religious Freedom Report 2010, Bureau of Democracy, Human Rights and Labour, US State Department, November 2010

    [4] CX247798: Egypt: Ahmed Subhy Mansour, Free-Mind.org, undated

    [5] CX244155: Egypt: Koranists, military service, ID cards and security services procedures in Egypt, Australia: Department of Foreign Affairs and Trade 1March 2010.

    [6] DFAT, supra, 28 January 2014, at page 14

    The applicant’s religious practices in Egypt

16. For the reasons explained below, the Tribunal finds that the applicant is not a genuine Koranist. In the course of the hearing, the applicant’s evidence was inconsistent, general and vague.

17. The applicant gave evidence that he went to Egypt in 2011 because his father was very sick and that he stayed there for two months. He confirmed that was the last occasion when he visited Egypt. The applicant told the Tribunal that he has [siblings]. He confirmed that all members of his family including his parents are living in Egypt.

18. The Tribunal asked the applicant about his religious practices in Egypt. The applicant stated that his family are of the Sunni faith, that he had a religious upbringing, and that he was sent to religion lessons. He stated that he practised Sunni Islam all his life. He studied religion at school as well as at college. He went to [university] where he continued to study religion. He stated that he liked reading about Islamic history and the Prophet’s life. He said he was involved in intense discussions and research in relation to the conflict between Ali Abn Abi Taleb and Mouaaseefa who were incorrectly assigning comments to the Prophet. He stated that was a turning point in his life and it changed his faith. The Tribunal asked him to clarify how the conflict had caused the change and he stated that he started to search for other ways such as the Koran. He stated that he discovered that there was no basis for the Hadiths. The applicant referred to various Koranic verses.

19. The Tribunal asked the applicant about the specific changes in his Islamic practices as a result of that turning point. The applicant stated that he started to believe that the Koran was the correct source of Islamic law. The Tribunal asked him again about the change in his practices and he stated that about a year prior to him coming to Australia, he stopped going to the mosque for about three weeks but his father began to ask him questions. The Tribunal asked him about any other changes and he stated that there was not much and that he started to read the Koran and stopped discussing the topic with his father. 

20. The Tribunal acknowledges it is not unusual that one’s religious beliefs and practices can be difficult to define.  It is also not unusual to have a level of confusion and uncertainty about one’s religious practices and beliefs.  However, the Tribunal is of the view that the applicant required substantial prompting to identify changes in his religious practices following the claimed turning point in his religious practices, raising some doubts.  The applicant has made a claim that there was a turning point in his faith but the only concrete illustrations of that were his claims that he stopped going to the mosque for about three weeks and the change in his beliefs about the Koran being the only source of Islam.  Even if the Tribunal were to accept those claims, without more, the Tribunal is not satisfied that they are evidence that in Egypt the applicant was a Koranist or that he did not practise Sunni Islam. In the Tribunal’s opinion, questioning aspects of one’s religion does not, without more, indicate that one no longer believes, or that one has changed their faith.  On his own evidence, the applicant studied religion at school and at university, he was involved in intense discussions and he liked reading about Islamic history and the Prophet’s life. All of those suggest a level of intellectual and critical engagement with the religion, including questioning aspects of the religion like the Hadiths. 

    The applicant’s religious practices in Australia

21. The applicant’s religious practices in Australia provide significant insight into the applicant’s overall religious practices.  The Tribunal asked the applicant about his Islamic practices after his arrival in Australia. The applicant stated that for six years he prayed but at the end of 2012 he started to reconsider his religious practices again. He said he was in a relationship with an Australian woman who was Christian of the Orthodox faith but she did not strictly adhere to practice, such as going to church weekly. He said that they started to talk about their respective religions and she started asking him about the Koran.  She wanted to learn more about Islam and the difference between the Hadiths and the Koran. He said it was natural for her to have started asking questions about his faith and she observed him reading the Koran before going to bed.  The Tribunal finds it difficult to understand why a person with doubts about their faith and who is in a country such as Australia where there is religious freedom, would not further explore their beliefs in those circumstances soon after arrival. 

22. The applicant for six after his arrival made no obvious changes to his religious practice.  On his evidence, although he did not pray at the mosque as often as required by his faith, he however prayed at home five times a day. The Tribunal asked him why he would pray five times a day as required by the Hadiths rather than three times as advocated by the Koran. The applicant stated that when he first came to Australia, he had not converted and therefore he continued to follow Sunnah and the Hadiths. The Tribunal indicated that given that there is religious freedom in Australia, it is difficult to understand why he would continue to practise Sunnah and the Hadiths, given his evidence that he started to doubt them and think about other religious paths prior to him coming to Australia. The applicant stated that he doubted the Hadiths because of his studies. He stated that when he came to Australia, there were language difficulties and that he faced many other problems. He said he was not thinking about religion which was part of his academic studies. The applicant stated that he currently prays three times a day.  The Tribunal is not persuaded by the applicant’s explanations.  The Tribunal is of the view that the applicant’s continued practice of Sunnah in Australia raises serious doubts about his claims and general credibility.

23. In the course of the hearing, the Tribunal asked the applicant if he considers himself to be a Koranist and the applicant replied “I don’t consider myself a Koranist” but a follower of the Koran which is the only applicable law. He stated that he does not follow anything else. The Tribunal indicated to the applicant that he has claimed to be a Koranist and now the applicant stated that he is a Muslim who follows the Koran; he said he is a Muslim Koranist. The applicant debated this for some time with the Tribunal. The Tribunal asked him if there was a difference between a Muslim Koranist and a Koranist and he stated that there is no difference between a Koranist and a Muslim Koranist.

24. The Tribunal appreciates that Koranists identify themselves as Muslims, not a particular sect.  However, the applicant himself has claimed to be a Koranist.  He has identified himself as being so.  He continued to make a distinction between Koranist and a Muslim Koranist, yet asserting that they are “connected” and could not identify the alleged difference. The Tribunal is satisfied that the applicant has provided inconsistent and confused accounts of his faith.

    Delay in making claims

25. The Tribunal discussed with the applicant the information noted in the delegate’s decision record provided by the applicant, that when he attended an interview with the Department to discuss Bridging visa E matters, he stated that his parents and family in Egypt are aware he would be returning home, that he would live in a house that he owns in Cairo, and that he has no specific concerns for his personal safety in returning to Egypt despite the current general unrest. The Tribunal further indicated that it was noted that he did not raise any concerns when he sought Ministerial intervention in September 2013, or when he met with the case officer in September 2013, or when he lodged applications for the Bridging E visas. The applicant stated that his solicitor (referring to his migration agent) told him that the interview would take about 10 to 15 minutes, that it was routine, and that there was no need to mention those matters.

26. The Tribunal asked him why he did not mention his fear of harm when he sought Ministerial intervention and the applicant stated that his agent had advised him not to do so and that it was routine procedure. The Tribunal indicated to the applicant that the fact that he did not mention his fear of harm on the basis of his religious beliefs or practices, could raise serious doubts about his claims. The applicant reiterated that he did not know about the legal processes in Australia, that his agent told him that it was a routine procedure, and that he would have the opportunity to discuss those matters when he receives a refusal. He said he is not planning to return to Egypt. He said he cannot return to Egypt because he would be harmed.  The Tribunal indicated that he still did not mention fear of harm on this basis when he sought Ministerial intervention. He said he just wanted to get a student visa and hence it was not mentioned in the request for intervention. 

27. It is also important to consider the delay in the context of the applicant’s migration history.  The applicant confirmed that he came to Australia in September 2006 as the holder of a student visa to [study]. The visa was valid for 2 ½ years and subsequently he applied and was granted another student visa. He applied for a third student visa at the end of 2009 but it was refused for breach of the attendance condition. The refusal was affirmed by the MRT.

28. The Tribunal referred to the applicant’s migration history, in particular the fact that he had arrived in Australia in 2006 yet he had applied for a protection visa in January 2014, a number of years subsequent to his arrival. The Tribunal indicated to the applicant that the delay in lodging the application for a protection visa could raise doubts about his claims. The applicant stated when he came here, his true intention was to study and religion was out of his mind. He said he came here to [study]. He said his partner came into his life and it was then when he started to think again about religious matters.

1. The Tribunal has carefully considered the applicant’s explanations but the Tribunal is not convinced or persuaded.  The applicant has had numerous opportunities to raise his claim of fearing harm on the basis of religious practices/beliefs and he did not, not even when seeking Ministerial intervention which would have been a significant opportunity, raising serious doubts about his claims and general credibility.

2. In light of the concerns discussed above, on the basis of the available information, and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant is a Koranist, or Koranist Muslim, or that he has been involved in any activities either in Egypt or anywhere else that are Koranist related activities or that they could be perceived as supporting the movement. In essence and for those reasons, the Tribunal does not accept that the applicant has ever had views that are or could be perceived as being Koranist views or ideologies or beliefs, or that he and his former girlfriend used the internet and read more, or that is how they were introduced to Koranist’s views, or that he discussed any views as claimed with his former girlfriend or anyone else, or that for three weeks in Egypt he did not attend the mosque as claimed, or that he was questioned by his father, or that he was accused of being a Kafir or that he now practises Islam differently, or that he does not practise Sunni Islam. Essentially, the Tribunal does not accept that the applicant has ever suffered any of the claimed harm, or that he ever feared such harm.

   Is there a real chance that the applicant would suffer serious harm if he were to return to Egypt?

3. The Tribunal asked the applicant why he did not wish to return to Egypt and he stated that he cannot return because they are extremists. He said Koranists in Egypt are harmed and mistreated. He referred to an online newspaper article which he read about three weeks ago reporting the arrest of five people who faced fabricated charges.

4. For the stated reasons, the Tribunal has not accepted that the applicant has suffered any of the claimed harm, or that he had practised any Koranist related activities.  On the basis of the available information, in consideration of the evidence as a whole, the Tribunal is satisfied that if the applicant were to return to Egypt, he would not engage in Koranist related activities not to avoid harm but because he is not a Koranist.  For the same reasons, the Tribunal is not satisfied that the applicant would be perceived to be a Koranist or someone opposed to Sunni Islam, in case of his return to Egypt.

5. The Tribunal has considered the applicant’s claims individually and cumulatively.  In essence, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in Egypt now or in the reasonably foreseeable future.  Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

   Is there a real risk of significant harm occurring to the applicant in case of his return to Egypt?

6. The Tribunal has found that the applicant is not a Koranist.  In consideration of the evidence as a whole and on the basis of the available information, the Tribunal is not satisfied that there is a real risk that the applicant would suffer significant harm on any basis.

7. The Tribunal is aware that there are security issues in Egypt, however in consideration of the evidence as a whole and looking at the applicant’s individual profile, the Tribunal is not satisfied that there is a real risk that the applicant would suffer significant harm if he were to return to Egypt.

8. For those reasons, the Tribunal finds that the applicant’s claims do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Egypt, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa).

   CONCLUSIONS

9. For the reasons given above, 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).

10. 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 satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. 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

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

    Antoinette Younes
    Senior Member