1502364 (Refugee)

[2016] AATA 4271

1502364 (Refugee) [2016] AATA 4271 (19 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502364

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Antoinette Younes

DATE:19 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2016 at 11:51am

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] May 2014 and the delegate refused to grant the visa [in] January 2015.

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

   RELEVANT 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.

   CLAIMS AND EVIDENCE

8. In support of the application for a protection visa, the applicant provided a statutory declaration in which he made the following claims:

   a.He is a Coptic Christian Egyptian aged [age]. He is married and he has a [age]-year-old married [child] who lives in [Country 1] but [his/her] relationship with [the spouse] is not good. He has travelled to many countries including [another country] and [Country 1] to visit his [child] but he encountered harsh treatments from [the child’s spouse]. He has also visited Australia on four occasions. During the visit to Australia with his wife in 2006, his wife died and she was buried in Australia. He returned to Egypt alone.

   b.In Egypt, he tried to cope alone with the harsh circumstances especially being alone, elderly and unable to defend himself against the harsh treatments faced by Coptic Christians. He visited his [child] in [Country 1] but returned to Egypt five months later as his [child’s spouse] treated him badly. He was granted a [residence] card in [Country 1] but his [child’s spouse] refused to accommodate him or assist him in any way and consequently the [residence] card became invalid.

   c.In Egypt, he lived in fear at all times and he had no friends or family upon whom to rely. Living in Egypt has deprived him of the freedom to practise his faith. Going to church was such a hard task because he knew that he might not return home alive. The Muslim Brotherhood constantly persecuted Christians and he could not go to church to pray or attend sermons. Sometimes, the church was closed in fear of getting attacked. He stayed at his home as a prisoner.

   d.In December 2012, he went to get his salary and on the way back home, he felt something being thrown at him from the back. It was cold and suddenly a man came and he handled him roughly. He called him an infidel and “pig” undeserving to live. He could not defend himself because he was frail and weak. He went to report the incident to the police but they did not investigate the incident.

   e.There were times when he was paid a lesser amount in pay than what he was entitled to and when he asked about the rest of his salary, this was denied and he was yelled at and was told that “Copts doubt their masters”.

   f.On occasions, fanatical Muslims near his work swore at Coptic Christians and threatened him every time they saw him. Life in Egypt for him was full of robbery, threats, persecution, violence, looting, plunder and terror, all of which were caused by the Muslim Brotherhood.

   g.The landlord of the building used to threaten him to leave the apartment and he conspired to police to evict him. The landlord accompanied by police and “thugs” from the Muslim Brotherhood broke into his apartment [in] July 2013. The scene was terrifying; they smashed the windows and asked him if he wanted the furniture out of the window. The furniture was stolen by people in the street. They said they refused to allow Coptic Christians live among them and they threw them out as well as the furniture. They went to the roof and broke the ceiling of the house. He was truly horrified but was not able to do anything because he was alone. When his siblings found out about the incident, they were very upset and asked him to come to Australia to visit and rest for a while. He wishes to live with his [siblings] and spend the rest of his days in peace and security.

9. In a subsequent statutory declaration, the applicant indicated that:

   a.The landlord of the building changed about four years ago and the new landlord is an Islamist extremist. When he first bought the building, he only took a month rent from the applicant and other Christians. They paid a solicitor to pay the landlord but he refused to take the money. The matter went to court and the landlord still refused to sign or receive the rent. The landlord started to threaten them and wanted to remove them from the building. The landlord went to court. 

   b.On a number of occasions, they went to the police station and were made to wait for hours to see an officer who told them that they had to leave because the landlord wants to knock down the building. However this only related to Christians and not the Muslim tenants who were not threatened or asked to leave so the claim that the landlord wants to demolish the building was false. They told the police that they had nowhere to live but the police were not interested. The police handcuffed them to threaten and terrorise. The neighbour’s children were screaming and crying when they saw the handcuffs.  The solicitor intervened and they were released from the police station.  It was clear that the landlord had paid the police to terrorise them and put fear in them to leave the building. Subsequently the other Christian neighbour never returned to the building he stayed with his family. This incident occurred only a few months before July 2013.

10. The applicant provided a document titled [title name], referring to a license to undertake building work, medical reports in relation to the applicant suffering from various medical conditions, and a letter of support from the Church [name] referring to the applicant’s regular attendance at the church and fear of harm.

11. The applicant was interviewed by the department in relation to his protection and a summary of his responses is reproduced in the delegate’s decision record provided by the applicant in support of the application for review. Although the delegate took into consideration the applicant’s age and that it would be understandable that he would not have perfect memory, the delegate was concerned that the applicant was vague and unable to provide details of his claims. When asked why he is not returning to Egypt, the applicant responded that he was tired of the discrimination and violence against him because of his religion. He described that approximately four years ago, the issue with the tenancy started. The applicant was asked if he could provide court documents and he said he could not because the police came to his home and threw things out of the window. In essence, the delegate did not find that there is a real chance or risk of the applicant suffering harm to Egypt.

    HEARING INVITATION

12. On 17 May 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 scheduled on 29 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 on the case without further notice.  On 6 June 2016, the applicant responded to the hearing invitation by indicating that he wished to attend the hearing scheduled for 29 June 2016.  For reasons beyond the Tribunal’s control, the hearing was rescheduled to 30 June 2016 and the applicant was informed of the rescheduled hearing on 8 June 2016.

13. On 23 June 2016, the applicant’s representative advised the Tribunal that due to medical reasons, the applicant requests that the review application be decided on the basis of the written claims. The representative attached a copy of a report from [Dr A], Mental Health Social Worker, in which [Dr A] indicated that:

    a.The applicant is under her care following referral from his general practitioner for “continued treatment for his psychological condition”. The applicant had reported to her that he is unable to care for himself and that he has deteriorated psychologically and physically over the recent past.

    b.During clinical interviews, the applicant was unable to speak well due to [a health condition]. His general practitioner had diagnosed him with [another medical condition].

    c.The applicant is cognitively impaired and suffers from short-term memory, poor concentration sleep problems, and nightmares.  He is constantly in pain from [injuries] he sustained from the [health condition]. Without support, the applicant would suffer from a rapid decline in his physical and mental states. 

    d.The applicant fears for his life and is unable to return to Egypt due to Muslim extremists wanting to kill him. He is unable to cope with the stress over his personal security which has exacerbated symptoms of [psychological conditions]. It would be beneficial for the applicant to receive support from his family in Australia and he has no other relatives in Egypt.

    e.In her opinion, the applicant meets the criteria of [psychological conditions] together with physical health problems such as the [health condition].  He would not be able to cope and participate in hearing due to his deteriorating health both mentally and physically.

14. The representative requested and the Tribunal granted time to provide further submissions. Subsequently, the Tribunal received generic reports relating to the security incidents in Egypt, reports of torture and abuse in detention centres in Egypt, apostasy in Islam, ill-treatment of Christians including Coptic Christians, testimonies of Muslim converts, ill-treatment of Christian preachers, and list of converts from Islam to Christianity. The representative also provided the following documents:

    a.Letter from [the] applicant’s [sibling], titled to whom it may concern, stating that the applicant was unable to go to church and participate in mass due to bombings and burnings of Coptic churches and acts of violence by Muslims on Copts. [The sibling] stated that he relayed [that] on a number of occasions when he went to the bank, he did not receive the full amount he had withdrawn and when he asked to speak to the manager he was told “Copts doubt their masters”.  During a telephone conversation in December 2012, [the applicant] was crying and he was scared because two days earlier he was attacked and robbed by a Muslim while returning home.  The attacker was scared away but [the applicant] did not go to the police because they were not prepared to take a report.  The building where [the applicant] lived was sold to Muslim who was trying to evict [him] “solely because he was a Coptic Christian”. The landlord abused [the applicant] and told him he was going to get rid of him. The landlord got a report stating that the apartment which [the applicant] occupied was not livable and needed demolition, which was not “logical”. [In] July 2013, [the applicant] returned home after buying food and discovered that he had been broken into.   The landlord, corrupt police, and a group of thugs from the Muslim Brotherhood threw his furniture out of the window. The applicant was taken away by the police station for disturbing and he was ill-treated.  Subsequent to the incident, her brother was harassed and verbally abused. The applicant has lived with [the sibling] since his arrival in Australia.

    b.Letter from [name], the applicant’s [relative], titled to whom it may concern, stating that she had kept in telephone contact with the applicant who was always crying and afraid to leave home.  She reiterated the applicant’s claims including those relating to being short changed at the bank, being verbally abused when he questioned the underpayment, the incidents of December 2012 and [in] July 2013, and the abuse by the landlord.

    c.Submissions to the Tribunal dated 30 June 2016 essentially summarising the applicant’s claims relating to curtailing his religious’ practices out of fear, being abused and harassed due to his Coptic faith, being short changed of his pension payments, the landlord evicting the applicant, being handcuffed by the police, being spat at and rocks being thrown at him by children, being referred to as an infidel, and being unable to leave the house of his [relative] where he lived subsequent to being evicted in July 2013. The representative submitted that due to the applicant’s frail age, psychological condition and fear of returning to Egypt, he triggers Australia’s protection obligations. He has nowhere to return to in Egypt and he would be harmed because of his religion. He would not be able to protect himself and he will be prohibited from practising his faith because he would be too scared and fearful to go to church. Since his arrival in Australia, he has enjoyed going to church without fearing for his life. Attached country reports show that whilst there have been improvements, Christians have continued to suffer specially in upper Egypt. The relationships between the Coptic Church leaders and the government have recently improved but Christians in Egypt are still suffering persecution. Islamists are still active in the Egyptian community and although Egypt’s political situation has dramatically improved and the financial position has experienced significant developments, terror attacks by Islamists extremists have increased since Morsi’s removal. An objective assessment of Egypt as well as the applicant’s own circumstances, mean that the applicant’s safety can only be assured if he were to stay outside Egypt.

    FINDINGS & REASONS

    Country of nationality

15. On the basis of the available information, the Tribunal finds that the applicant is a national of Egypt. 

16. 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).

    The applicant’s claims of harm

17. The Tribunal accepts the evidence from [Dr A] that, amongst other things, the applicant has deteriorated psychologically and physically over the recent past, that he has [impairment] caused by the recent [health condition], that he suffers from [psychological conditions] and that he has been diagnosed with [another medical condition]. The Tribunal acknowledges that the applicant’s conditions have meant that he felt that he would not be able to participate in a hearing. There has been no request to adjourn the hearing or make any arrangements for the Tribunal to take evidence from the applicant or any witnesses. The Tribunal however notes that on his behalf, the representative who is a legal practitioner has provided extensive recent submissions.  It is reasonable for the Tribunal to assume that those submissions have been prepared on the applicant’s instructions suggesting to the Tribunal that the applicant is competent to provide instructions to his representative and that he fully understands the consequences of not attending the hearing to which he was invited.

18. In making its decision, the Tribunal has given weight to [Dr A’s] observations and diagnosis. The Tribunal has also given weight to the statements provided by the applicant’s [sibling] and [relative] as outlined above, however, the Tribunal notes that those statements are essentially based on what the applicant had told them about what had allegedly happened in Egypt. Neither the applicant’s [sibling] nor the [relative] is claiming that they have in fact observed the claimed incidents. The Tribunal has given some weight to their statements but the Tribunal also recognises that their probative value is limited. The Tribunal also appreciates that being family members, it is natural that the [sibling] and the [relative] would want to assist the applicant in the best way that they possibly can.  By saying so, the Tribunal is not suggesting that they have been untruthful in the information they have provided in the statements but their familial relationship to the applicant cannot be ignored or underestimated.

19. The applicant has been put on notice by the Tribunal that the Tribunal was unable to make a favourable decision based on the available information. Although there are reasons which the Tribunal accepts for the applicant not wishing to participate at a hearing, the Tribunal does not have sufficient details to enable it to be satisfied that the claimed incidents occurred.  For example, in relation to the claim that in December 2012, he felt something being thrown at him from the back and the police did not investigate the incident when he reported it. There are insufficient details about the circumstances surrounding the police refusal to investigate; details about what the police said when they refused to investigate and any reasons they gave for their lack of intervention. Moreover, in relation to the claim that he was paid lesser amounts to what he was entitled, there are insufficient details about how and when he was paid less. There are insufficient details about the context in which the applicant claimed to have been yelled at and told that “Copts doubt their masters”.  Regarding the applicant’s claim that on occasions, fanatical Muslims went to his home and swore at Coptic Christians and threatened him every time they saw him, there are insufficient details about how and when he was threatened. There are insufficient details about how and when life was full of robbery, threats persecution, violence, looting plunder and terror, and how he knew that all of those incidents were caused by the Muslim brotherhood. The applicant has claimed that on a number of occasions, they went to the police station and they were made to wait for hours, but there are no specific details about when those occasions occurred, apart from noting that one incident occurred a few months before July 2013, or how the applicant concluded that the ill-treatment as far as the claimed eviction from the building was concerned only related to Christians and not Muslim tenants. There are no details about when and how the claimed incidents of being spat at, or rocks being thrown, being called an infidel, occurred.

1. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm; the Tribunal is not satisfied that:

   a.The applicant tried to but was unable to defend himself against the harsh treatments faced by Coptic Christians, or that in Egypt, he lived in fear at all times, or that he had no friends or family upon whom to rely, or that he was deprived of the freedom to practise his faith, or that going to church was a hard task, or that he could not go to church to pray or attend sermons, or that he stayed at his home as a prisoner, or that in December 2012 when he went to get his salary, he felt something being thrown at him from the back, or that suddenly a man came and he handled him roughly, or that he called him an infidel and “pig” undeserving to live, or that he could not defend himself because he was frail and weak, or that he went to report the incident to the police but they did not investigate the incident, or that he was ever spat at, or that children threw rocks at him, or that anyone has ever called him infidel.

   b.The applicant was ever paid less than what he was entitled to, or that he was ever short changed by anyone, or that when he questioned the underpayment, he was yelled at or was told that “Copts doubt their masters”.

   c.Fanatical Muslims near his work swore at Coptic Christians, or that they ever threatened him, or that life for him was full of robbery, threats, persecution, violence, looting, plunder and terror, caused by the Muslim Brotherhood, or that he does not want to return to Egypt because he was tired of the discrimination and violence against him because of his religion, which Tribunal does not accept.

2. The Tribunal notes that the applicant has provided a document titled [name], referring to a license to undertake building work, without more and on its face, the Tribunal is not satisfied that the claimed incidents in relation to the landlord occurred.  Although the Tribunal accepts as plausible that the landlord wanted to evict the applicant and others, on the evidence before it, the Tribunal does not accept that the landlord was an Islamist extremist, or that he had paid the police, or that he had refused to take their money as claimed, or that the landlord wanted to evict Christian tenants only, or that threatened the applicant, or that he conspired with the police, or that the landlord was ever accompanied by police and “thugs” from the Muslim Brotherhood, or that they ever broke into the applicant’s apartment, or that they smashed windows, or that they broke the ceiling off the house, or that they threw his furniture out, or that they refused to allow Coptic Christians in the building, or that he was ever harassed or discriminated against as claimed, or that he and other Christians tenants were ever taken to the police station, or that he was ever handcuffed as claimed, or that he was horrified and was unable to do anything because he was alone, or that the incident contributed to him wanting to come to Australia.

3. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered serious or significant harm on any grounds.

4. The Tribunal accepts that the applicant is of the Coptic Christian faith and that he practises his faith in Australia.  The representative has provided generic reports relating to Egypt and Christians in particular. The Tribunal has taken those reports into consideration and acknowledges that Christians in Egypt can be harmed, however the Tribunal does not accept that being a Christian or a Coptic Christian without more means that there is a real chance or a real risk that a Christian applicant would suffer serious or significant harm as contemplated by the Act. The Department of Foreign Affairs and Trade’s (DFAT) 24 November 2015 Country Report[1] reported that following the January 2011 revolution, and particularly during the Morsi administration, “life became considerably more difficult for Copts, particularly in Upper Egypt. DFAT is aware of reports during this period of harassment and intimidation of Copts (and moderate Muslims) by more conservative Muslims, including of sporadic harassment of women with uncovered hair. There were anecdotal reports of Christian men and women being encouraged — or cajoled — to convert to Islam. However, although significant community tensions remain in some areas of Upper Egypt (particularly Minya), there have been substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Copts. DFAT assesses that most Copts from all walks of life live peacefully with their Muslim neighbours, particularly in the urban centres” [2]

   [1] Department of Foreign Affairs and Trade 2015, DFAT Country Report, Egypt, 24 November 2015

   2 DFAT Thematic Report Egyptian Copts, 24 November 2015.D2ember 2015

5. The Tribunal gives significant weight to DFAT’s comments that Coptic Christians from all walks of life live peacefully with their Muslim neighbours. The Tribunal has accepted that the applicant is a Christian but the Tribunal has not accepted that the applicant has suffered serious or significant harm on the basis of his religion, or any other basis.  The Tribunal is not satisfied that being Coptic Christian without more means that there is a real chance or a real risk of serious or significant harm occurring to the applicant on that basis. Although this is not specifically claimed by the applicant, the Tribunal nevertheless needs to consider whether the applicant has a profile which would mean that there is a real chance of a real risk of him being harmed. There is nothing before the Tribunal to suggest that the applicant has a profile of interest; on the basis of the available information, the Tribunal is not satisfied that the applicant has any profile that would mean he faced or could face harm on the basis of his Coptic faith or practice. The Tribunal is satisfied that the applicant continues to practise his faith in Australia as supported by the letter from the Church [name] referring to the applicant’s regular attendance at the church, however, the Tribunal is not satisfied that the practice of his faith would mean that he would be harmed on this basis, or that he would be perceived as being anti-Islam, or being anti-authorities, or that he would not be allowed to practise his Coptic Christian faith on his return to Egypt. 

6. On the evidence before it, the Tribunal is not satisfied that if the applicant were to return to Egypt and practise his faith, he would engage in activities actual or perceived to be anti-authorities, or anti-Islam, not out of fear but because the applicant is not genuinely interested in being involved in any such activities. In relation to the applicant’s claim that he would be too scared and fearful to attend church, the Tribunal does not have sufficient details for the reasons and extent of the applicant’s claimed fear. Given his age and ill-health, the Tribunal appreciates that the applicant might feel apprehension about going to church but the Tribunal is not satisfied that any such apprehension amounts to serious or significant harm, or that the applicant would be prohibited from practising his faith, or that he would need to modify his conduct to avoid any harm.

7. On balance the evidence including DFAT’s report mean that the Tribunal is not satisfied that if the applicant were to return to Egypt, there is a real chance or a real risk that he would suffer serious or significant harm.

8. In relation to the applicant’s claims of being elderly, unwell and with no home or family in Egypt, it is important to remember that the applicant is applying for a protection visa and the applicant must meet the criteria of the visa in order to be granted the visa. The Tribunal is satisfied that the applicant is elderly, that he has health-related issues, that his wife is now deceased, that he may not have a home or close family in Egypt. Without intending to come across as being harsh or unkind in any way,  the Tribunal does not accept that any challenges that he could encounter on his return to Egypt on those grounds, would amount to serious or significant harm as contemplated by the Act.

9. In essence, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Egypt for any other reason. 

10. In consideration of the evidence as a whole, including the applicant’s individual circumstances either singularly or cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of persecution, or that there is a real chance that he would suffer serious harm for any other claimed reason, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has 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.

11. The Tribunal has also considered whether the applicant is eligible for complementary protection. In consideration of the evidence as a whole, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm. In consideration of the evidence as a whole, the Tribunal finds that there are no 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 the applicant 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).  

12. 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

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

    Antoinette Younes
    Senior Member