1503456 (Refugee)

[2015] AATA 3745

1503456 (Refugee) [2015] AATA 3745 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503456

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Rea Hearn Mackinnon

DATE:17 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 17 November 2015 at 4:56pm

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] December 2012 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [name] and [name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. 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.

7. 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’).

8. 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.

9. The issue in this case is whether the applicant will be harmed by the Muslim Brotherhood, Salafis or the government in Egypt because of his political views and his religion.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Nationality

10. The applicant has provided a copy of his Egyptian passport. The Tribunal is satisfied that he is a national of Egypt and has assessed his claims against Egypt as his country of nationality and his receiving country.

    Background

11. The applicant was born on [date] in [location], Gharbia, Egypt. He completed school in [year] then worked as a [occupation] between 2002 and 2005. He first entered Australia in 2007 on a student visa which expired in November 2009. His application for a further student visa was refused in January 2010 and that decision was affirmed by the Migration Review Tribunal in February 2012. The Federal Circuit Court dismissed his appeal in November 2012.

12. The applicant returned to Egypt between [date] November 2008 – [date] January 2009, [date] November 2010 - [date] November 2010, [date] August 2011 - [date] October 2011 and [date] June 2012 - [date] October 2012. He states that he is not married and has no children. His mother died in 2014, His [sister] and her husband live in Cairo. He claims that his father and [brother] disappeared in 2013 and that he has no knowledge of their whereabouts (discussed below).

13. The applicant was charged with criminal offences [in] May 2014 related to some problems he had at his place of employment. [Name], who is the applicant’s support worker at [a] health service in [town], told the Tribunal that the applicant was referred with depression; that she sees the applicant every fortnight in relation to community issues; and that he is a trustworthy and reliable person. [Name] is a counsellor at the health service. He told the Tribunal that he has been counselling the applicant for eight months in relation to self-esteem, depression, anxiety and anger management.

    Claims

14. In his written statement setting out his claims and at the time of his interview with the delegate, the applicant claimed to fear harm from the Muslim Brotherhood because he and his family were prominent supporters of the National Democratic Party (NDP) and supported Ahmad Shafiq (the former prime minister under the Mubarak NDP government) in the 2012 presidential elections.

15. At the hearing, the applicant claimed to fear harm from the Muslim Brotherhood, the Egyptian government (because it persecutes anyone who speaks out against the government) and Al-Nour (a prominent Salafi political party). He also claimed to be from the Sufi sect which he stated is opposed to the Muslim Brotherhood and persecuted by the Salafis.

    Country background information

16. In January 2011, widespread protests broke out against the regime of President Hosni Mubarak (of the NDP) who had been in power since 1981. Mubarak resigned in February 2011 with the military retaining interim control. The NDP was dissolved by the Supreme Administrative Court on 16 April 2011 for corruption and electoral fraud.[1] Former NDP members established several new political parties which legally contested the parliamentary elections held between November 2011 and January 2012.[2]  A presidential election was held in June 2012 and Mohammad Morsi of the Muslim Brotherhood was elected president. Ahmad Shafiq was a candidate in that election. 

    [1] Carnegie Endowment for International Peace n.d., National Democratic Party, Guide to Egypt’s Transition

    [2] ‘NDP Offshoots’, 2011, Ahram, 18 November

17. Following poor economic progress and increasingly authoritarian tendencies, large scale protests against Morsi erupted from November 2012 resulting in the Army removing Morsi from power on 3 July 2013. An interim government was then installed and a constitutional declaration on 8 July 2013 provided a transitional roadmap for presidential and parliamentary elections following the adoption of a new constitution. Morsi and senior members of the Muslim Brotherhood were arrested and charged with various offences relating to the deaths of protesters.[3]  The Muslim Brotherhood was designated a terrorist organisation and thousands of supporters were arrested during protests.

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

18. The new constitution was passed on 14 January 2014 and parliamentary elections were scheduled for March 2015 however these were postponed after a ruling by the SAC on the constitutional validity of the Electoral Constituencies Law.[4]

    Harm due to political opinion – support for the NDP and Ahmed Shafiq

    [4] Kingsley, P 2015, ‘Egypt’s Parliamentary Elections Set to be Delayed by new Legal Battle’, The Guardian, 1 March

19. The applicant claims that he and his family were active NDP supporters, that his father was a local leader of the NDP until 2006 and a member until the party disbanded in 2011; that his uncle was a local [official] and also an NDP supporter; that he assisted his father and uncle in campaigning for the NDP in the 2010 parliamentary elections; and that Ahmad Shafer visited his uncle in March 2012, prior to the presidential elections which were held in June 2012. The applicant claims that he and his family have been targeted in the past because of their political views and affiliation. These claims are discussed below

    ·Threats

20. In his written statement lodged with his protection visa application, the applicant stated that a group of Muslim Brotherhood supporters approached his family during the election campaign and told them to stop supporting Ahmad Shafiq; and that during his last visit to Egypt, he was stopped a number of times by people belonging to the Salafi movement who told him to stop supporting the old regime.  The applicant told the delegate that between August 2011 and September 2012, his father and uncle received threatening calls from unknown persons believed to be Muslim Brotherhood members because of their NDP support.

21. The Tribunal accepts that the applicant and his family may have been NDP supporters and that his uncle may have been [an official]. The Tribunal notes that the NDP was dissolved in April 2011 and does not accept that the applicant or his family continued to support the NDP after that date or that they received threatening phone calls from August 2011 telling them to stop supporting the NDP.  The Tribunal notes that former NDP members formed new parties which contested the parliamentary elections in 2011/2012 however the applicant does not claim to have joined or supported those parties.

22. The Tribunal accepts that the applicant and his family may have supported Ahmed Shafiq in the 2012 presidential election. The applicant has provided a news report which indicates that Ahmad Shafiq visited the governorate of Gharbiya in March 2012. According to the report, he conducted Friday prayers at Al-Emari mosque in Sunbat district then gave a speech at the church of El-Set Refqa where he was escorted out of the church by “a rally of hundreds of residents who chanted in support of him as Egypt’s next president” (f.56 of the Tribunal file). The report makes no mention of a visit to [location] however the Tribunal accepts that the applicant’s uncle may have hosted a visit by Ahmad Shafiq in March 2012.

23. The Tribunal accepts that the applicant’s family members may have received some phone calls during the presidential election telling them not to support Ahmad Shafiq. The Tribunal does not accept that such calls amount to serious harm. The Tribunal does not accept that Salafists stopped the applicant on his last trip to Egypt telling him to stop supporting the old regime as Morsi had already been declared President when the applicant returned to Egypt.[5]  

    Assault

    [5] Morsi was declared President on 24 June 2012: ‘ Election Day: ‘Egypt is finally born’, CNN

24. The applicant claims that he and his father were assaulted [in] September 2012. In his written statement, he said that his father was assaulted by a group of people in September 2012 a day after receiving a threatening call telling him to stop his opposition to the Muslim Brotherhood. The applicant told the delegate that he and his father were assaulted [in] September 2012 on their way into the village by [a number of] bearded men he believes were members of Muslim Brotherhood. He was knocked unconscious and woke up in hospital.

25. The applicant provided to the Tribunal a copy of document purporting to be a police complaint dated [in] September 2012. The complainants are the applicant and his father. They complained of the assault and that the applicant received [injury]; and that his father was hit with a piece of wood causing [injury]. They complained that persons belonging to the Muslim Brotherhood had phoned and threatened them because they supported Ahmad Shafiq in the presidential election.

26. The Tribunal does not accept that the applicant or his father was assaulted by members of the Muslim Brotherhood in September 2012 because they supported Shafiq. Shafiq scored 48% of the vote in that election indicating a high level of support.[6] The news report cited above indicates that Shafiq had many supporters in Gharbia and the applicant said in his written statement that his [district] recorded one of the highest votes against the Muslim Brotherhood. Given this level of support for Shafiq in the district there is no reason why the applicant and his father would have been targeted. Just because they supported Shafiq. The applicant’s father had not been a member of the NDP for some years and the evidence before the Tribunal does not indicate that the applicant or his father had been particularly active supporters of Shafiq. Even if the applicant’s uncle hosted Shafiq, the uncle was not assaulted and the visit from Shafiq had been six months previously in any event. Further, there is no apparent reason why the applicant and his father would have been threatened for supporting Ahmad Shafiq and attacked three months after Morsi was elected President.

    [6] ‘Muslim Brotherhood’s Mohammad Morsi wins Egypt’s presidential race’, The Guardian, 25 June 2012

27. The Tribunal accepts that the applicant may have been assaulted and injured in 2012 but does not accept that any such assault was politically motivated. The Tribunal places little weight on the police complaint noting that it was not provided until the matter was before the Tribunal even though it purports to relate to events that occurred before the applicant lodged his protection visa application and the content is entirely as related by the applicant and his father.

    ·Confiscation of uncle’s land

28. In his written statement, the applicant said that people confiscated his uncle’s land. He told the delegate that the land was seized by people who were renting it. The applicant told the Tribunal that the land was owned by his father and uncle. He provided a copy of a document purporting to be a police report, dated [in] September 2012. The applicant said that the complainant, [name], is his father. The complaint states that [number] neighbours who are named in the complaint along with the political parties they belong to (Party of Freedom and Justice and Al-Nour Party) seized his land by force [in] September 2012 because they were annoyed by his support for Ahmad Shafiq. The land was [number] Fadan in area.[7]

    [7] Approximately [number] hectares: Wikipedia, Fedden

29. The applicant told the Tribunal that his father has made an application to the court about the land seizure but the case has not yet been heard and the persons who seized the land are still in possession of it. When asked what claim these people had to the land, the applicant said that his family had been in control of the village under Mubarak and people in the village sought revenge. He said that the village comprised about [number] people. When asked how his family controlled the village, he said that his uncle was [an official] and his father was a member of the NDP. The Tribunal noted that there may have been thousands of NDP supporters in the village at that time. The applicant stated that there has been poor security in the village since 2012 and that he has provided information about this.

30. The applicant has provided various newspaper reports to illustrate the insecurity of his area including a report of a fire in a [factory] and an assault.

31. The Tribunal accepts that the applicant’s uncle may be involved in a land dispute. The Tribunal does not accept that his father is also involved in the dispute as a part owner of the land as this claim was not made until the matter was before the Tribunal. The applicant’s evidence that the people were renting the land is not consistent with the police report allegedly made by his father that the people were neighbours. The Tribunal places little weight on the police complaint given that it does not accept that the applicant’s father was an owner of the land; given that the complaint was only provided at the Tribunal stage of the review although the claimed confiscation occurred before the applicant lodged his protection visa report; and given that the content of the complaint is as related by the applicant’s father. The Tribunal does not accept that the land was seized by Salafists or members of the Muslim Brotherhood because of the applicant’s uncle’s support of Ahmad Shafiq or the NDP. Further, the applicant’s evidence that the land dispute is currently before the court indicates that there may be a legitimate issue in dispute.

    ·Kidnapping of cousin

32. In his written statement, the applicant said that his uncle’s grandson, [Child A], was kidnapped; that his uncle had to pay a [ransom]; and that, when [Child A] was returned he said that he had been taken away by bearded men. The applicant told the delegate that the kidnappers were bearded men who may have been criminals or members of the Muslim Brotherhood. The applicant told the Tribunal that [Child A] is [family relationship]. [Child A] was [age] years old. He was taken on his way home from school and held for three days. His kidnappers rang the home and spoke to his uncle. They asked for ransom and told the family to stop supporting Ahmad Shafiq. His uncle paid the ransom and did not report the kidnapping to the police as the kidnappers would have killed the boy. The applicant told the Tribunal that this event occurred whilst he was still in hospital after the assault above and possibly around the same time as the land was confiscated.   

33. The Tribunal does not accept that [Child A] was kidnapped as claimed. The applicant claims that his uncle was [an official] indicating that his uncle had a level of power in the community and the Tribunal does not accept that the applicant’s uncle, as [an official], would not have used connections within the police force or other authorities or taken other action to protect himself and his family if his brother and [Child A] had been attacked, his land confiscated, his grandson kidnapped and his son-in-law assaulted (see below) all within the space of a few days. Further, as stated above, there is no reason why this series of events would have occurred within a short period of time in September 2012 three months after the presidential elections. The applicant’s evidence in relation to all of the claimed events has lacked any detail which would render it more credible.  

    ·Killing of cousin in [Country 1]

34. The applicant told the Tribunal that a cousin (the son of a different uncle) was killed in [Country 1] in 2011. His cousin had been working in [Country 1] for three years at the time and was bashed and robbed. The Tribunal is satisfied that this event is unrelated to the applicant’s claims.

    ·Assault on brother-in-law

35. The applicant claims that his brother-in-law (his sister’s husband) was also assaulted whilst the applicant was in hospital. He told the delegate that his brother-in-law was harassed three times on the same day. The first two times were not serious but his brother-in-law was hospitalised after the third time. He told the Tribunal that the assault was not serious and was intended just to harass and humiliate his brother-in-law. He said that the same people who confiscated his uncle and father’s land were responsible and that the assault occurred after they took the land. It is not clear from the evidence if this assault occurred before or after [Child A] was allegedly kidnapped. The applicant stated that his sister and brother-in-law moved to Cairo shortly after this assault.

1. The applicant claims that his sister and brother-in-law have been in hiding in Cairo, apart from when they go to work. Prior to the hearing, he provided a number of documents about his sister which indicate that his sister holds a [tertiary qualification] and works for the [name] Department and was invited on a study tour to [another country] in 2013. The Tribunal noted that his sister does not appear to be in hiding. The applicant stated that leaving her home in the village and moving to Cairo is a form of hiding.

2. The Tribunal does not accept that the applicant’s brother-in-law was assaulted as claimed because he has provided inconsistent evidence about the incident and because overall, his evidence about these events has been vague.  The Tribunal accepts that the applicant’s sister and brother-in-law moved to Cairo but does not accept that they moved out of fear or that they are hiding in Cairo. The applicant’s sister appears to be leading a busy professional life in Cairo.

   ·Disappearance of father and brother

3. The applicant claims that his father and brother disappeared from the village in April 2013. He provided a copy of a document purporting to be a police complaint dated [in] April 2012. The complainant is the applicant’s sister. The complaint states that they had received threats and frequent contacts from people who threatened them and that the applicant’s father and brother had disappeared two days previously. The applicant claims that he has had no contact with his father or brother since then. He told the Tribunal that the last they heard, his father and brother had gone to [Country 2] but he has had no word from them. When the Tribunal sought to clarify that his father and brother had not been harmed but had left Egypt, the applicant said that they did not need documents to go to [Country 2] and they left in fear. The Tribunal queried why they did not tell anyone where they were going. The applicant said that no one knows if they are dead or alive or under arrest.

4. The applicant’s initial claim that his father and brother disappeared in April 2013 implied that they had met foul play. As the applicant has now stated that his father and brother were last heard of in [Country 2], the Tribunal does not accept that they suffered any foul play from Salafists or the Muslim Brotherhood in the village in 2013.

5. The Tribunal does not accept that the applicant’s father and brother went to [Country 2] in fear because they had received threats and contact from people who threatened them. For all of the reasons set out above, the Tribunal does not accept that the applicant’s father and brother were threatened in 2013 because they had supported the NDP prior to 2011 or because they had supported Ahmad Shafiq in 2012 or for any other reason. 

   Future harm

6. For the reasons set out above, the Tribunal does not accept that the applicant or his family suffered any serious harm in the past because of their support of the NDP or Ahmad Shafiq. In view of the passage of time since the end of the Mubarak regime and the dissolving of the NDP and the changed political situation in Egypt now including the defeat of the Muslim Brotherhood and the jailing of thousands of Muslim Brotherhood supporters, the Tribunal does not accept that the applicant faces a real chance of serious harm from members of the Muslim Brotherhood now or in the reasonably foreseeable future because he supported the NDP prior to 2011 or Ahmad Shafiq in 2012; or that there is a real risk he will face significant harm.

7. There are reports which indicate that senior NDP members who were key figures in the Mubarak regime were arrested and charged with offences relating to corruption and abuse of power in the aftermath of the revolution.[8] These reports do not indicate that general members or supporters of the NDP were targeted for arrest or any other harm because of their party affiliation and the Tribunal notes the country information above that former NDP members formed new parties which contested the parliamentary elections in 2011/2012. In view of this information, the Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future from the Egyptian authorities because he was a supporter of the NDP or Ahmad Shafiq; or that there is a real risk he will suffer significant harm.

   [8] ‘Egypt trials: Mubarak officials’ charges and verdicts’, 2011, BBC News, 28 September; ‘Egypt court acquits three Mubarak ministers’, 2011, Al Jazeera, 5 July

8. The Tribunal does not accept that the applicant will be perceived as a critic of the Egyptian government because he was a supporter of the NDP and Ahmad Shafiq and does not accept that he faces a real chance of serious harm or a real risk of significant harm from the government for that reason.

9. The Tribunal does not accept that the applicant will faces a real chance of serious harm from Salafists or from Al-Nour because of his political opinion.  Salafi groups and parties have become more prominent in Egypt since the revolution[9]  and Al-Nour is the most prominent Salafi party. Al-Nour’s objective is reportedly “to unify Egypt’s Islamic movement and apply Islamic principles to all aspects of social and political life”.[10] Al-Nour’s political platform has been described as follows:

   It [al-Nour] calls for the separation of legislative, judicial and executive powers, with the justice system protected from political interference. The party seeks to guarantee a long list of freedoms and rights, including freedom of expression, the right to choose a leader and hold him accountable, and free health care and education. The party does insist in a somewhat vague way, however, that these rights exist within a Sharia framework.[11]

   [9] Bakr, A, 2012, ‘Egypt’s Salafists: A closer look’, Ahram Online, 15 October

   [10] ‘Al-Nour Party’, 2013, Jadaliyya, 18 ovember

   [11] Brown, J, 2011, Salafis and Sufis in Egypt, Carnegie Endowment for International peace, December

10. The evidence before the Tribunal including the information above does not indicate that Salafists are targeting former NDP or Ahmad Shafiq supporters.

    Sufi religion

11. The Tribunal has some doubts that the applicant is a Sufi since he did not mention this aspect of his religion until the hearing. However, the Tribunal has given him the benefit of the doubt and accepts that he may be a Sufi.

12. As discussed with the applicant, Sufism is not a separate Islamic sect but a different way of practicing Islam that exists amongst both Sunni and Shia Muslims and is widespread in the Muslim world.[12]  It is often associated in the west with an acceptable and moderate form of Islam. According to one report, Sufi orders (or “paths”) are an important feature of popular Islam; Sufism should be understood as the default setting of Muslim religious life in Egypt and approximately 20% of Egyptians are estimated to be Sufi however “there are no exact figures in part because many who might participate in some Sufi activities do not identify themselves as active Sufis. Similarly the ubiquity of Sufism in Egyptian religious life means that participating in some aspect of Sufism is difficult to avoid”. Further, “Egypt’s Islamic religious establishment is strongly Sufi in character”.[13] Whilst Salafists take a more “austere and uncompromising” view of Islam than Sufis, the country information before the Tribunal does not indicate that Salafists or Salafist political parties are targeting Sufis or Sufi institutions in Egypt and the Tribunal does not accept that there is a real chance the applicant will suffer serious harm or a real risk he will suffer significant harm from Salafists because he is a Sufi.

    [12] Sufism is Islamic mysticism, an aspect or dimension of Islam which involves a “dedication to worship, total dedication to Allah most High, disregard for the finery and ornament of the world, abstinence from the pleasure, wealth and prestige sought by most men, and returing from others to worship alone”. See  ‘Sufism’, BBC – Religions – Islam: Sufism

    [13]

13. The Tribunal notes that the applicant was referred to counselling following some issues in Australia and that he has been counselled in relation to anxiety and depression. The Tribunal has had regard to this evidence in reaching its findings above. The Tribunal is satisfied that the applicant was able to properly present his case at the hearing.

14. Having regard to all of the evidence and findings above, the Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future in Egypt because of his actual or imputed political opinion or his religion, separately or cumulatively. Accordingly, the Tribunal does not accept that he has a well-founded fear of persecution.

15. Having regard to all of the evidence and findings set out above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Egypt, there is a real risk he will suffer significant harm.

    Conclusion

16. 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).

17. 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).

18. 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

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

    Rea Hearn Mackinnon
    Member