1419307 (Refugee)

[2016] AATA 4025

1419307 (Refugee) [2016] AATA 4025 (22 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419307

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Roslyn Smidt

DATE:22 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 June 2016 at 1:35pm

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 is a citizen of Egypt, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] November 2014.

3.    On 8 April 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 June 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4.    The applicant was represented in relation to the review by his registered migration agent.

THE RELEVANT LAW

5. 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.

6.    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).

7.    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.

8.    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’).

9.    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.

CLAIMS AND EVIDENCE

1. The applicant is a [age] year old man from Cairo in Egypt. He is married and has [children]. His wife and children remain in Egypt.  He worked [and obtained a qualification in specific field] in 2001 and worked as [occupation] from 2001 or 2002.

2. The applicant claims that he faces serious and significant harm if he returns to Egypt because of his membership of the Muslim Brotherhood. 

3. In a written statement provided with his initial application [in] September 2013 the applicant said that he and other family members had belonged to the Muslim Brotherhood for many years and said that he was an active supporter of the group in Egypt. He said that because of his association with the Brotherhood he had been questioned many times during Mubarak’s rule and had been involved in arguments with fellow [workers]. Even after President Morsi came to power he still faced problems. On one occasion he was involved in an argument in the street and he was taken to a police station.  After President Morsi was overthrown the situation became very dangerous for Muslim Brotherhood members. Many of friends were injured, [number] were detained and [number] were killed. Because of this he was afraid to return to Egypt so he left his [work place] and applied for protection in Australia

4. During his interview with a delegate of the Minister held [in] February 2014 the applicant said that he had become involved with the Muslim Brotherhood during his last year at university. After completing his [education] he worked for a [business] operated by the Muslim Brotherhood. He claimed that he was detained by police in 2001 after attending a Brotherhood meeting.

5. Since there were few work opportunities for [his profession] in Egypt at that time so the applicant took a job as [occupation]. However, he continued to support the Muslim Brotherhood and was involved in unpaid [work] with the Brotherhood during the 4 or 5 months he spent at home in Egypt each year.  He also engaged in political discussions about the Murbarak regime and military rule.

6. The applicant claimed that he was a high profile member of the Muslim Brotherhood in his local area.  He described himself as a moderate Muslim who was interested in social justice and said that he had supported the Brotherhood for this reason, not because of religion. He said that he was a member of the Freedom and Justice Party and supported then in elections  in 2012

7. The applicant said that he had been detained for two days in 2002 or 2001, but the reason for this was not established. The applicant claimed that he was also detained [in] 2013 after he and the friend he was having coffee with intervened in a fight which broke out in the street.

8. The delegate noted that the applicant had left his [work place] [in] July 2013, [but] did not apply for protection until [September] 2013 and asked the applicant why he had not applied for protection in a more timely manner. The applicant said that he had been waiting until the situation became clear.

9. The delegate accepted that the applicant was a member of the Muslim Brotherhood, but after reviewing information on the current situation in Egypt which in his view suggested that ordinary members of the group were not at risk of serious harm found that the applicant’s fears of persecution were not well-founded and he did not face a real risk of suffering significant harm.

CONSIDERATION OF THE APPLICANT’S CLAIMS

1. Although the applicant was interviewed by the primary decision-maker his claims remain vague and lacking in detail and appeared to contain some contradictions.

2. Central to the applicant case is the claim that he belonged to the Muslim Brotherhood. During his interview with the delegate, the applicant described himself as a high profile member of the Muslim Brotherhood and said that he was involved in [voluntary] work and sometimes engaged in political discussions. However, he failed to provide a detailed account of his reasons for joining the group, the nature of his membership and how his activities made him a high profile member.

3. According to independent country information new recruits to the Muslim Brotherhood at the time the applicant claims to have been a member underwent a lengthy induction process lasting up to 5 to 8 years and included study of the group’s aims and activities. Members belonged to a tightly controlled organisation of hierarchically linked cells with those at the lower level expected to follow instructions from the leadership.[1]

   [1] Brown, N & Dunne, M 2015, ‘Unprecedented Pressures, Uncharted Course for Egypt’s Muslim Brotherhood’, Carnegie Endowment for International Peace, 29 July < ; Trager, N 2011,The Unbreakable Muslim Brotherhood: Grim Prospects for a Liberal Egypt, September-October 2011, >

   If the applicant was a member of the Muslim Brotherhood I would expect him to able to explain in a reasonably detailed manner why he was attracted to the group, how he was recruited, the process he went through to obtain membership and the nature of the activities he was involved in which gave him a high profile in his local area.

4. If the applicant had attended the hearing I would have explored these matters with him. However, he failed to attend and I am unable to be satisfied on the evidence before me that he was high profile as a Muslim Brotherhood member or even that he belonged to or supported it.

5. As I am unable to be satisfied on the available evidence that the applicant belonged to or supported the Muslim Brotherhood it follows that I am unable to be satisfied that there is a real chance that would be persecuted because of this if he returned to Egypt now or in the reasonably foreseeable future. No evidence has been provided which suggests that he faces a real chance of being persecuted for any other reason in the Convention if he returns to Egypt and I am therefore not satisfied that he has a well-founded fear of persecution in Egypt for any of the reasons in the Convention/

6. For the same reasons I am unable to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

CONCLUDING PARAGRAPHS

1. 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).

2. 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).

3. 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

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

Roslyn Smidt
Member