1504061 (Refugee)

[2017] AATA 195

1504061 (Refugee) [2017] AATA 195 (18 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504061

COUNTRY OF REFERENCE:                  Egypt

MEMBER:B. Mericourt

DATE:18 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2017 at 3:54pm

CATCHWORDS

Refugee – Protection visa – Egypt – Harm from military authorities – Detention and torture – Bribe for release –  Credibility – False information regarding previous travel and residency in another country – Fabricated evidence to prolong stay in Australia – Delay in protection application 

LEGISLATION

Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 65, 499

Migration Regulations, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

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] November 2014 and the delegate refused to grant the visa [in] March 2015.

3. [In] March 2015 the applicant lodged an application for review of the Department’s decision with the Tribunal.

4. The applicant appeared before the Tribunal on 17 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   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.

   BACKGROUND

10. The applicant was born in [year] in Egypt and is a citizen of Egypt. He attended university in Cairo from [year] to [year]. He is Muslim and his occupation was [occupation]. He is married with [children]. His wife, children, parents and [siblings] reside in Egypt.

11. [In] June 2014 the applicant was granted [Visa 1] and he entered Australia [in] August 2014. [In] October 2014 he lodged an application for [Visa 2]. This was refused [in] November 2014.

12. [In] November 2014 he lodged an application for protection.

13. [In] February 2015 the applicant told the Department that he had lived and worked in [Country 1] from August 1999 to April 2006, from July 2008 to June 2009 and from [date] March 2013 to [date] February 2014. He has also travelled to [other countries].

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In his written statement of claims lodged [in] November 2014 the applicant stated that [in] February 2014 a group of security police officers came to his home at night to ask about his [sibling], who did not complete [the] military service and who ran away. The applicant told the police officers his [sibling] is in [Country 1]. The person in charge raised his voice and swore at the applicant. His [child] was disturbed by the loud voice and [child] and [child’s] dog came into the room. The officer shot the dog and took the applicant away in a car. He was blindfolded so he did not know where he was going. He was put in detention where he was tortured. His father went to a lawyer who advised him to pay a bribe of [amount] Egyptian pounds and he was released [in] March 2014 at 11pm. He went straight to the hospital where his injuries were treated and then went to [location] to hide. The officers kept coming to his home to ask about him. Police continued to ask about him in his town and about his [sibling] because they wanted to investigate how the applicant was able to get out of jail. After he obtained his visa the applicant spent approximately two months in Egypt thinking about how to depart Egypt, especially at the airport because his life was threatened. He knew someone who worked at the airport who assisted him by paying [amount] Egyptian pounds. The authorities are still chasing him to find out his location. [In] September 2014 his wife was at home with his children and parents when the authorities came to their house asking about him and his [sibling]. His wife informed him of this via viber.

15. The applicant provided the Department with several photos of himself with red marks on his torso.

16. At his interview with the delegate conducted [in] February 2015, the delegate put to the applicant that Department records indicated that when he applied for [Visa 1] in June 2014 in Cairo he had submitted evidence that he holds a [Country 1] Permanent Residency card and he had been the owner of [a company], for over [number] years. At that time the applicant also submitted photocopies of the Certificate of Incorporation in [Country 1], copies of his [Country 1] Permanent residency and his [Country 1] driver’s licence. The [Country 1] Permanent Residency card was valid until [date] August 2023. At his interview the applicant also submitted [a certain form for Country 1], issued by [a government department] [in] June 2012 and his [Country 1] Driver’s licence issued [in] April 2013 and valid until [date] January 2022.

17. The applicant clarified the periods of time he resided in [Country 1]. He claimed that he has no Permanent Residency card in [Country 1], only a work permit which allows him to work anywhere in [Country 1] but does not give him residency rights. He said that he submitted a fraudulently obtained [Country 1] Residency card in Cairo and this is the document he submitted with his application for [Visa 1] in June 2014. He claimed he was not interviewed by a delegate about [Visa 1] in Cairo.

18. The applicant reiterated the claims he had made in his written statement about what happened to him in Egypt and why he feared to return to Egypt. He stated that he was detained by authorities for five days in [location], a military zone outside Cairo, and tortured between [date] February and [date] March 2014. His father engaged a lawyer who “knew where people were taken”. He found him and the lawyer arranged for money to be paid for his “secret” release. The applicant did not have supporting evidence that the lawyer had been engaged, because the bribe paid to release him was illegal. He claimed that he remains of adverse interest to the authorities due to his [sibling]’s failure to complete [the] military service and the manner in which the applicant was released from detention. He also left Egypt without the appropriate process as he organised a friend to pay for his passport to be stamped so he could leave. The applicant said that he feared he would be detained by the military authorities who would harm him or even kill him.

    Department’s decision

19. The delegate found the applicant not to be a credible or truthful witness for the following reasons;

    ·he did not provide truthful and comprehensive information about his residential, travel and employment history having withheld from the Department information about his numerous lengthy residencies in [Country 1] which he declared only after he was put on notice that other sources stated otherwise;

    ·the applicant has used slightly different spelling of his names and different date of birth for an application to [Country 1];

    ·the applicant’s evidence about his circumstances in [Country 1] was vague and evasive and contradictory to the information he submitted to the Department when he applied for  [Visa 1] and [Visa 2];

    ·although the delegate was unable to verify the authenticity of the various documents that the applicant provided, she noted that [certain Country 1 form] was introduced to deter counterfeiting and/or altering advanced parole documents and it was issued to applicants filing for permanent residency status. She also noted that [Country 1] authorities records indicate they established the applicant’s identity [in] July 1999 and [in] September 2006;

    ·Department records indicate that the applicant was interviewed more than once by a delegate in respect of [Visa 1] visa which is contrary to the applicant’s evidence that he was never interviewed;

    ·the delegate did not find the applicant’s evidence plausible that authorities would suddenly come to his home for the first time ever in the middle of the night some [number] years after his [sibling] had departed Egypt to inquire about his [sibling]’s whereabouts.

20. The delegate concluded that the applicant fabricated his evidence for the purpose of his protection application and to prolong his stay in Australia and did not accept that he had been detained, tortured or that his lawyer paid the authorities money for his release. The delegate did not accept that the applicant was of adverse interest to the authorities when he departed Egypt. The delegate considered that the applicant’s delay in departing Egypt after he had received his visa and his delay in applying for protection after he arrived in Australia also undermined his claims that he had a genuine fear of significant or serious harm if he returned to Egypt.

    Evidence provided at the Tribunal hearing on 17 January 2017

21. The Tribunal discussed the applicant’s background, current circumstances in Australia and his claims. His evidence is summarised as follows:

22. The applicant said that he attended university in Egypt studying [course]. He has an equivalent of [a certain qualification]. When he finished his studies he worked as a [occupation]. He is married and has [children]. His wife and [children] live in [location], a governate in Egypt near Cairo. She stayed at her father’s house when the applicant came to Australia and then moved back to [location] at the end of 2016. His parents live on the ground floor. His [siblings] are all married and they live in their own households. He speaks with his wife, [children] and parents via viber on the internet. He last spoke with them yesterday.

23. The applicant lives with two friends in a house in [city]. He works as a [occupation] and sends some money back to his family in Egypt.

24. The applicant told Tribunal that the purpose of applying for [Visa 2] and coming to Australia was to avoid the military authorities in Egypt for the reasons given below. 

25. The Tribunal asked him why, if he was fearful about returning to Egypt and the purpose of coming to Australia was to escape persecution, he did not apply for protection soon after arrival instead of applying for [Visa 2]. The applicant said he did not think about protection initially and he would wait to see if things settled down in Egypt so just applied for [Visa 1] to study English. He thought that his [Visa 1] was refused as he came to Australia initially for tourism.

    Claims

26. The applicant said that the military authorities came to his home [in] February 2014 at 1am to ask about his [sibling]. [Sibling] had been in the army from 2001- 02 and had escaped (deserted) in 2002 before [sibling]’s military service was completed. The applicant was in [Country 1] at the time so does not know much about what happened at that time. He recalled that his [sibling] arrived in [Country 1] in the early part of 2002. At the time the applicant was living in [City 1]. His [sibling] first arrived in [country], then travelled to [state] and then to [City 1]. [Sibling] stayed with the applicant for about one week and then [sibling] left [City 1]. They next spoke about 2 months later as his [sibling] wanted some money. The last time he spoke to his [sibling] was just before he left [Country 1] in February 2014. He told his [sibling] what happened in Egypt after he had arrived in Australia. The applicant believes his [sibling] is residing in [Country 1] illegally.

27. The applicant lived in [Country 1] from August 1999. He had been granted [Visa 3] after he opened his own business called [name] in 2003. The Tribunal asked what kind of visa he had before that. He said he had a [different] visa which he renewed once and then he overstayed until he applied for [Visa 3] in 2003. The applicant returned to Egypt in 2006 to visit his parents and because he was over 30 years he would no longer be conscripted into the army. He also returned to be married [in] June 2006 in Egypt.

28. The applicant has not done any military service in Egypt himself. He was granted military exemption as a student when he first went to [Country 1]. He had sat for his final exams in June [year]. After he turned 30 years old he paid the fine to the military court in April [year] to obtain his military exemption.

29. The applicant returned to [Country 1] in July 2008 as the holder of [Visa 3]/authorisation which he had been issued in 2003 and was valid until 2007. He renewed it in 2006 for a further four years. He returned to Egypt in June 2009 to see his family. His authorisation was about to expire and he was advised to lodge an application for an [certain document]. He travelled back to [Country 1] in March 2013 as the holder of an ‘[certain document for Country 1]’ which he had applied for prior to his departure from [Country 1] in 2009. He left the signed copy of the form with a lawyer in [Country 1] and asked him to lodge it in [Country 1] before he arrived in 2013. This [certain document] was valid for one year and he left [Country 1] in February 2014 before it ceased.

30. The applicant also visited [another country] for 2-3 days in 2012 and [a different country] for about one month in 2012 for tourism. He did not take any family members with him. 

31. The applicant said that the army never came looking for his [sibling] between 2002 and 2014. At that time there was a different President and all the government bodies were different. The Tribunal put to the applicant that desertion from the army was a serious issue even during the previous era. The applicant said they didn’t come during that period.

32. When the military authorities came to his house in the middle of the night looking for his [sibling] the applicant told them that his [sibling] was in [Country 1]. They accused him of lying and started shouting and insulting the applicant and his parents. His [child] and his [child]’s dog woke up due to the noise and shouting. His [child] came into the room with the dog which started barking at them. The military officers shot the dog, blindfolded the applicant and took him away in a car. He didn’t know where he was being taken. He later found out he was taken to [location] which is a prison building located in the desert outside Cairo about 1-2 hours away from his home.

33. Initially the applicant was detained in a cell on his own. The military officers beat him with a hose on his back, legs and back of the knees and also kicked him with their heavy boots and verbally abused and insulted him. The following day they put him in a cell with other people and he stayed there another four days. He was detained for a total of five days. He was never officially arrested or charged. When the Tribunal asked him about this he said “this is what happens in Egypt simply for speaking back to a high ranking officer and asking him not to shout in the house”.

34. The applicant said that he was released after his father engaged a lawyer. The lawyer said he knew where people were sent and that his release could be secured by paying some money. His father gave the lawyer [amount] Egyptian pounds and the lawyer arranged the payment to be made to an unknown person. Two soldiers came and took the applicant from his cell to an office. His lawyer was there and he was released. The lawyer recommended he leave his home as he would not be safe. The applicant went with his wife and children to [a place] on the northern coast [of] Egypt. He had a relative there who accommodated the family in his apartment. He thought that his life was in danger because his release was not legal and they would want to know how it was arranged.

35. The applicant was in hiding for about six months. He lived on his savings from his work in [Country 1]. He had been running a [certain] shop in Egypt in the same building in which he lived. He rented this out and arranged for his father to receive the income from the tenant.

36. The applicant said that he decided to leave Egypt. He applied for [Visa 1] in June 2014. He had not known what to do before that. A friend introduced him to a person who [was employed] in the airport. He paid him [amount] Egyptian pounds and entered the airport with him. He did not line up in the queue to have his passport stamped with an exit visa. He went to the side with the [employee] who explained to the immigration officer that the applicant was his friend and asked his passport be stamped. He assumed that part of the bribe was paid to this person.

37. The Tribunal asked the applicant about the delay of two months between being granted [Visa 1] and departing Egypt. He said it took him almost two months to find someone to help him to leave Egypt.

38. The Tribunal asked the applicant if anyone came to his family home to look for him after he went into hiding. He said that they went many times to his house. They verbally threatened his parents, but he didn’t ask them about the details of the threats as he was so shaken himself.  

1. The Tribunal asked why the military authorities would want to pursue him given he had not been accused or charged with any crime or offence.  His own evidence suggested he had offended an officer who had had him imprisoned and beaten for five days. There appeared to be no reason why he would continue to be pursued by military authorities three years later. He insisted this would happen because that is the way the military and government operate in Egypt.

2. The applicant said that after he left Egypt the military authorities went back to his house to ask about his whereabouts. His wife sent him a message on viber about the authorities coming to the house. Initially he could not recall when his wife told him about their visit. On further questioning he thought it was about 2-3 weeks after he arrived in Australia. She told the authorities that he had left Egypt and would not come back, and they told her they would get both him and his [sibling].

3. In October 2014 his wife told him that the military authorities came to his house a second time. They told his wife that they had arrested the person who helped the applicant to leave Egypt. His wife said that the military authorities spoke to her in an inappropriate (disrespectful) way. Only the applicant’s mother was at home and his father could not protect his wife. She decided to go to live at her father’s house to be safe. This is when the applicant decided to apply for protection in Australia.  

4. The Tribunal put to him that he did not say this at the beginning of the hearing when asked about why he did not apply for protection as soon as he arrived and applied for [Visa 2] instead. He said he was not asked.

5. The Tribunal asked the applicant why he did not go to [Country 1] as he had been several times and lived there for a total of nine years. He would be familiar with the visa process and the [Country 1 government] website indicates it would be possible for him to apply for a temporary visa. He said he could not apply for a visa off-shore any more as it was no longer possible to do it so easily. The Tribunal put to him that he stayed in Egypt for six months and that would have given him time to apply for a temporary [Visa 3] and provide the required documents and fingerprints. He said that he could not apply for any temporary visa in [Country 1]  because he had a “case” with immigration in [Country 1]. He clarified this was the registration of his company in [Country 1] which is why he would need an [certain document for Country 1] not just a temporary visa of any other kind.

6. The Tribunal asked the applicant if he had ever been charged or arrested for any offence in [Country 1]. He said he had [certain] offences and fines for selling [items] in [City 1].York. The Tribunal put to him that the delegate discussed his immigration status in [Country 1] and put her concerns to him which she referred to in her decision. The applicant said that she told him [Country 1] authorities had said he had been arrested in September 2013, but he was in Egypt at the time. He had returned to Egypt in April 2006, married in June 2006 and his [child] was born in [year]. He offered to provide the Tribunal with a copy of his relevant passport pages from his previous passport.

7. The applicant said that if he returns to Egypt he fears he will be detained, tortured and beaten in prison. The Tribunal put to him that it seemed very unlikely he would adverse interest to the authorities when he had never been accused or charged with any offences. He said that is what particularly distressed him, as if there had been a charge he could defend himself in court. The authorities would know that he has returned due to informants who would tell them he had returned. The Tribunal asked him again why he would still be of interest to the military authorities. He said that the money used for his release would be seen as a “rip-off” by the authorities and consequently he would still be pursued by them. He will only be safe if his [sibling] is deported from [Country 1] and returns to Egypt.  The Tribunal put to him that his evidence was that he was pursued by authorities as he had offended a senior officer and been released from prison improperly and it would make no difference if his [sibling] was deported from [Country 1]. He agreed.

8. The Tribunal asked the applicant if there were any other reasons he feared returning to Egypt. The applicant repeated the fears he had as a result of the experience he had when he was detained for five days in February 2014. He thought that he developed [a medical condition] as a result of the stress of that experience. He was diagnosed with [the medical condition] in Australia after his arrival. He takes oral medication which his doctor says he doesn’t need to take if he is feeling better.

9. The Tribunal asked the applicant again if there were any other reasons he feared returning to Egypt. He said there are no other reasons he fears returning to Egypt.

   FINDINGS AND REASONS

   Requirement that the decision-maker be ‘satisfied’

10. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Nationality

11. On the basis of the applicant’s passport provided to the Department, the Tribunal finds that the applicant is a citizen of Egypt. Based on the Department’s findings that there had been no conclusive report received about the applicant’s residency entitlements and/or his re-entry rights to [Country 1], the Tribunal accepts that it is inconclusive about whether the applicant has an existing right to enter and reside in [Country 1] and whether he has taken all possible steps to exercise that right. Therefore, for the purpose of this decision, the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Egypt, the Tribunal also finds that Egypt is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

12. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

13. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

14. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

15. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

16. The Tribunal carefully considered the applicant’s written statements and the information that he provided to the Department at his interview with the delegate.  It also carefully considered the oral evidence provided by the applicant at the hearing before this Tribunal.  Having done so, the Tribunal formed the view that the applicant is not a witness of truth and that he has fabricated his claims for the purpose of obtaining a permanent visa to remain in Australia for the following reasons.

17. The Tribunal found the applicant’s evidence to be very precise about the date of his detention and the events that occurred in his home in Egypt [in] February but vague about all other matters including his visas in [Country 1], the times he claims the military visited his home while he remained in Egypt in hiding and after he departed Egypt. He could not recall when his wife told him that the military authorities had visited his home after his departure and said he did not ask his parents what military officers had said when they visited his family home while he was in hiding.

18. The Tribunal also found his evidence relating to authorities in Egypt only coming to his home to enquire about his [sibling]’s absence and failure to complete military service [number] years after his [sibling] had departed Egypt to lack credibility. His [sibling]’s departure and failure to return would have been a matter of record accessible to the relevant authorities and desertion was considered to be a serious matter by the previous regime as well as the current regime[1]. To only follow up the applicant’s [sibling]’s desertion [number] years after the event, and to do so by coming to the applicant’s residence on the first floor, rather than his parent’s residence on the ground floor to ask about his [sibling] and to do so in the middle of the night appears to be extremely far-fetched.

    [1] European Asylum Support Office, Country of Origin Query Egypt, 9 October 2015, Military Service in Egypt, states that desertion (hurub) is addressed in the Military Regulations’ Law (Qanun al-ahkam al-‘askariyya) (Law number 101 of 1957). Deserters are prosecuted in the military court and the punishment is prison.

19. The Tribunal places significant weight on the length of time between when the applicant arrived in Australia and when he lodged the visa application. He initially sought to apply for [Visa 2] and only applied for protection just before his [Visa 1] ceased, three months after his arrival. The Tribunal considers that if the applicant genuinely feared returning to Egypt as he claims he would have sought protection in Australia sooner than he did. The Tribunal does not accept the applicant’s explanation that he did not think about protection initially and thought he would wait to see if things settled down in Egypt. This is inconsistent with his claim to have been in hiding in Egypt for six months before he departed because he feared significant harm. He also did not depart Egypt for almost two months after he had obtained his Australian visa. The Tribunal does not accept that he spent that time thinking about how to depart Egypt and looking for someone to assist him to leave Egypt.

    Does the applicant have a genuine fear of persecution in Egypt for a Convention reason?

20. The Tribunal is not satisfied that the applicant is a witness of truth for the reasons discussed above. Consequently the Tribunal does not accept that military or police or related authorities visited the applicant’s home in February 2014, interrogated him about his [sibling]’s whereabouts, shot his dog, blindfolded him and took him to a military detention centre, detained him or beat and kicked him. The Tribunal does not accept that the applicant was released from detention only after his lawyer paid a bribe to authorities.

21. Even if the Tribunal accepted that there was an incident involving the military and the applicant in which the applicant was physically mistreated in February 2014, the applicant has given evidence that he has never been accused of a crime or offence, formally arrested or charged with any offence in Egypt. The Tribunal considers that he therefore would not be adverse interest to the military authorities or police or related authorities if he returns to Egypt now or in the foreseeable future.

22. As the Tribunal does not accept that the applicant was detained by military or police authorities nor that he was released from detention by his father paying a bribe via his lawyer, the Tribunal is not satisfied that the applicant would be of adverse interest to the authorities as a result of his claimed illicit release from detention.

23. The Tribunal is not satisfied that the applicant paid a bribe of [amount] Egyptian pounds and had a person working at the airport, [an employee], assist him to obtain an exit stamp in his passport. The Tribunal considers that the applicant was able to leave Egypt without any problems, particularly as he has a long history of travel in and out of Egypt and, in August 2014 he had a legitimate Australian [Visa 1].

24. Consequently, the Tribunal is not satisfied that the applicant was of any adverse interest to the authorities in Egypt before his departure and is not satisfied that the applicant is of any adverse interest to the authorities in Egypt now.

25. The applicant has stated that he has no other reasons to fear returning to Egypt now or in the foreseeable future. He has been granted exemption from military service now that he is over 30 years old and has paid the required fine.

26. The Tribunal is therefore not satisfied that there is a real chance that the applicant will suffer serious harm (having regard to the examples provided in s.91R(2) of the Act) if he returns to Egypt.

    Are there substantial grounds for believing there is a real risk he will suffer significant harm if he returns to Egypt now or in the foreseeable future?

27. As the Tribunal does not accept any of the applicant’s claims about what happened to him in Egypt in 2014 or that he was of any adverse interest to the authorities in Egypt before his departure or is of any adverse interest to the authorities now, the Tribunal is not satisfied that there are potential grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).

    CONCLUSION

28. 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).

29. 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).

30. 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

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

    B. Mericourt
    Member