1416127 (Refugee) - [2016] AATA 4369

1416127 (Refugee) [2016] AATA 4369 (30 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416127
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Sophia Panagiotidis
DATE:30 August 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 30 August 2016 at 10:28am
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] September 2013 and the delegate refused to grant the visa [in] September 2014.
The applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Background
The applicant was born in Minya, Egypt in [year]. He lived in [another country] from 1987 to 2006 and from 2006 to 2013. He was granted a visa subclass [to] travel to Australia and he arrived [in] June 2013. He participated in a placement at [a] University from [date] June 2013 for [number] weeks. His visa ceased [in] September 2013. He applied for a protection visa [in] September 2013.
His claims as outlined in his application for a protection visa are as follows:
·The applicant claims to be a Coptic Christian. He has stated that although born in Egypt he grew up in [another country] but returned to Egypt in 2006 to study [a tertiary course].
·The applicant has claimed he was assaulted by [number] people in Minya [in] December 2012 while he was leaving a train station. They took his phone, watch and wallet. He reported this to the police who were unable to identify the men responsible.
·The applicant claimed that [in] March 2013 he was visiting a friend at a hospital in [a suburb] and they heard gunshots outside. His [sibling] rang him and warned him of the danger and return home. As he tried to escape many people were running and [number] men following him from the hospital. They hit him with a blunt, thick stick and he fell. Those who helped the applicant told him the men had beards and wore white cloaks. He reported the assault to the police the next day.
·The applicant claims to fear returning to Egypt because he will be subjected to further harm by Islamic groups and because of the spike in Christian persecution, the authorise failed to protect him. The authorities in Egypt are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1416127 (Refugee)

Details

AGLC: 1416127 (Refugee) [2016] AATA 4369
Case: [2016] AATA 4369
Decision Date: 30 August 2016

CaseChat Overview and Summary

The applicant, a Coptic Christian, sought a protection visa after arriving in Australia in June 2013. He claimed to fear returning to Egypt due to past assaults and the general persecution of Christians, asserting that Egyptian authorities were unable to protect him. The applicant also raised concerns about potential targeting due to his occupation and perceived wealth, as well as accusations against monks affiliated with his relatives. The matter came before the Tribunal for review of the decision regarding his protection visa application.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which requires the Minister to be satisfied that Australia has protection obligations under the 1951 Refugee Convention and its 1967 Protocol. This involved determining if the applicant had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and was therefore unable or unwilling to avail himself of the protection of Egypt. The Tribunal also considered, as an alternative, the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal considered the applicant's claims of persecution, including assaults and the general climate of fear for Christians in Egypt, particularly in light of the rise of the Muslim Brotherhood and anti-government protests. It also took into account the applicant's evidence regarding his family's situation and his inability to reside indefinitely in another country without sponsorship. Applying the principles of the Refugees Convention, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in section 36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.Background The applicant was born in Minya, Egypt in [year]. He lived in [another country] from 1987 to 2006 and from 2006 to 2013. He was granted a visa subclass [to] travel to Australia and he arrived [in] June 2013. He participated in a placement at [a] University from [date] June 2013 for [number] weeks. His visa ceased [in] September 2013. He applied for a protection visa [in] September 2013. His claims as outlined in his application for a protection visa are as follows: ·The applicant claims to be a Coptic Christian. He has stated that although born in Egypt he grew up in [another country] but returned to Egypt in 2006 to study [a tertiary course]. ·The applicant has claimed he was assaulted by [number] people in Minya [in] December 2012 while he was leaving a train station. They took his phone, watch and wallet. He reported this to the police who were unable to identify the men responsible. ·The applicant claimed that [in] March 2013 he was visiting a friend at a hospital in [a suburb] and they heard gunshots outside. His [sibling] rang him and warned him of the danger and return home. As he tried to escape many people were running and [number] men following him from the hospital. They hit him with a blunt, thick stick and he fell. Those who helped the applicant told him the men had beards and wore white cloaks. He reported the assault to the police the next day. ·The applicant claims to fear returning to Egypt because he will be subjected to further harm by Islamic groups and because of the spike in Christian persecution, the authorise failed to protect him. The authorities in Egypt are unable to protect him and if he returns, especially after the rise of the Muslim Brotherhood and anti-government protests. ·The applicant further claims that he was initially not permitted to study [a tertiary course] without payment of [amount] EGP (approximately [amount]. The applicant has made additional claims during the interview with the delegate [in] June 2014. · The applicant claims that his [relative] is affiliated with monks at [a] monastery in [town]. If he were to return there to live this would put the applicant in danger with the police because the police have accused the monks of storing weapons and supplying these to Christians. The applicant’s [relative] has been accused of having weapons and has been arrested and taken to jail for three months and his house has been searched many times. · The applicant also claims that [certain professionals] in [town] are targeted for kidnapping. The applicant is a [occupation] and a Christian and his parents live in [another country] and therefore he is perceived to be from a wealthy family. The hearing The applicant confirmed his parents still live in [another country]. His father is [age] and works as an [occupation] in a [firm]. He told the Tribunal that in order to remain in [the other country], a person must have investments or be employed by a [local] employer. His father previously had invested in a small [business] but has sold that and just works for a [firm]. He told the Tribunal that his parents went to [the other country] before he was born for work. He has a [sibling] who is living in [that country] and is working for a [local] company who is sponsoring [sibling]. He has [a sibling] in [the other country] who is still at school. He has [another sibling] who is a university student in Egypt and another who is living in Aswan with [family]. He told the Tribunal that he has no right to return to live in [the other country] indefinitely unless he is sponsored for employment or has investments there.

Evidence

Evidence Before The Court

The applicant said that being in the [certain] profession itself is not safe in Egypt. There was a case recently where a policeman attacked a [information deleted]. 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 whether the applicant faces a real chance of serious harm or a real risk of significant harm if returned to Egypt.

Decision

Reasons for decision

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.Sophia PanagiotidisMember

Ratio Decidendi

Legal Principle Established

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