1509246 (Refugee)

[2017] AATA 1267

1509246 (Refugee) [2017] AATA 1267 (24 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509246

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Shahyar Roushan

DATE:24 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2017 at 12:25pm

CATCHWORDS
Refugee – Protection Visa – Egypt – Religion – Koranism – Quranism – Claimed detention and assault – Inconsistent evidence – Credibility

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

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).

   Background, Claims and Evidence

2. The applicant, a [number] year old citizen of Egypt, arrived in Australia [in] August 2013 as a holder of a [temporary] visa granted [in] July 2013. He applied for a protection visa [in] November 2013.

3. The applicant resided in Alexandria, Egypt. He holds a [degree] from the [University]. He was the owner of a [business] from October 2007 to August 2011. He was an office manager for [workplace] in Alexandria from September 2011 to August 2013.

4. The applicant travelled to [Country 1] in August 2013, staying for approximately two weeks. In February 2011, the applicant travelled to the [Country 2], remaining for approximately 6 months.

5. The applicant essentially claims that he is a Quranist (or Koranist) and that he fears being harmed in Egypt for the reason of his beliefs.

   Application for a protection visa

6. In his application for a protection visa, the applicant made the following claims:

7. In 2009 he became acquainted with a group of Koranists through the Egyptian branch of [a club] and the National Democratic Party (NDP). Unlike ‘strict’ Sunnis, they had a ‘liberal approach’ to religion. As a result of his association with these people, he converted to the ‘Quranistic religion’. Subsequently, he found it increasingly difficult to ‘freely practise’ his religion in public and he feared being harmed if he were to express his views.

8. The applicant’s [sibling] shared his beliefs and when their father found out about religious views, they were both ‘evicted’ from the family home and refused any form of financial assistance. He also refused to give them any part of the inheritance they were entitled to after their mother’s death. His family regard him as an apostate and believe that he should be killed.

9. In May 2009, the applicant became engaged to his fiancée, [Ms A], who was accepting of his beliefs. However, her family were devout Muslims and he was concerned about the consequences for his relationship should her parents become aware of his beliefs. He was forced to practise his religion in secret due to fear of retribution from family members, neighbours, friends and the authorities.

10. In 2010, the applicant was detained in Alexandria by the State Security Investigations Service (SSIS) due to his beliefs. He was threatened and warned not to continue his involvement with the group, not to meet with other Koranists and not to attend meetings. He was ‘later’ released due to ‘connections [he] had with someone in the NDP’.

11. In January 2011, the applicant was attacked ‘in front of’ his fiancée by a group of Sunni Muslims in his neighbourhood after seeing him with other Koranists on a different occasion. The attack resulted in him being hospitalised for [number] days.

12. In February 2011, the applicant attended a [club] meeting in the [Country 2]. He remained in the [Country 2] for a period of six months. However, he did not apply for asylum as he did not want to risk leaving behind and losing his fiancée. That time also coincided with the Egyptian revolution and he was hopeful that the situation would be different.  Upon returning to Egypt, the applicant married his fiancée.

13. In 2012, he was ‘attacked and held again’ by the SSIS. He was tortured because of his religious beliefs. The SSIS targeted small ‘religious factions’ to prevent what they considered straying from mainstream held view of Islam. While he was being detained, his wife’s family tried to find out where he was being held. During this process, they found out that he is a Koranist and they forced him to divorce his wife. He found himself ‘depressed and lonely’.

14. The applicant’s boss offered to take him on a business trip to [Country 1] and Australia. The applicant decided to apply for asylum in either of the two countries. His trip to [Country 1] was short and he found himself too busy to find someone to help him apply for asylum. During this time, his [sibling], who was now living in Upper Egypt, informed him that the SSIS were asking about him. Although his boss changed his travel plans, the applicant decided to continue his journey to Australia ‘to delay eventual persecution back in Egypt’. His fear for his safety led him to apply for protection in Australia. His [sibling] introduced to him to an acquaintance in Australia to assist him.

15. In support of his application for a protection visa, the applicant submitted copies of reports and news items in relation to Koranists their situation in Egypt.

16. The applicant attended a departmental interview [in] May 2014. Where relevant, the applicant’s oral evidence at that interview is referred to below.

17. [In] June 2015, a delegate of the Minister decided to refuse the application. In essence, the delegate did not find the applicant to be a credible witness and did not accept his claims.

    Application for Review

18. The applicant applied for a review of the delegate’s decision.

19. In support of the application for review, the applicant submitted the following document:

    ·A Divorce Certificate, certifying that the applicant and [Ms A] were divorced [in] October 2012.

    ·A Medical Report, issued by [a hospital], dated [in] September 2012, stating that the applicant ‘checked in’ to the Emergency and Care Unit, ‘brutally beaten’. He was subjected to medical examination, which showed bruising and numerous other injuries, as well as evidence of [specified violence]. The applicant left the hospital [in] September 2012.

20. The applicant appeared before the Tribunal on 3 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

21. On 3 April 2017, the Tribunal wrote to the applicants pursuant to s.424A of the Act inviting them to comment on/respond to information that the Tribunal considered would, subject to any comments/response they made, be the reason, or a part of the reason, for affirming the decision under review. The applicant was asked to provide his comments or response by 18 April 2017.

22. On 13 April 2017, the applicant wrote to the Tribunal requesting an extension of time to provide his comments or response. The Tribunal agreed to the request and the applicant was asked to provide his comments or response by 27 April 2017.

23. On 26 April 2017, the applicant again wrote to the Tribunal requesting a further extension of time to provide his comments or response. On the same day, the Tribunal wrote to the applicant and advised him that, following a careful consideration of his request, the Tribunal had decided not to grant an extension of time.

24. On 27 April 2017, the applicant wrote to the Tribunal, advising that he had been unable to obtain ‘any pro-bono legal/migration assistance to respond to the letter’. He stated that as no further extension of time had been granted, due to his ‘limited written English’ and his inability to access free legal or migration assistance, he is ‘unable to provide a written response’.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. 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).

27. 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.

28. 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’).

29. 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.

    Reasons, Findings and Analysis

30. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the unpersuasive nature of some key aspects of his claims and other reasons detailed below. 

31. First, at his departmental interview, the applicant claimed for the first time that, in 2010, he was arrested at Cairo airport when returning to Egypt from an overseas trip. He was released after three or four hours of questioning. The applicant, however, made no mention of this incident in the statement attached to his application for a protection visa or in his oral evidence to the Tribunal. When this was put to him at the hearing, he said maybe he forgot to mention it. He added he was not in real detention and had only experienced 10 hours of delay. The Tribunal does not find this explanation persuasive and is not satisfied that it adequately addresses the inconsistency in the applicant’s claims.

32. Secondly, in the statement attached to his application for a protection visa, the applicant stated that, in 2010, he was detained in Alexandria by the State Security Investigations Service (SSIS) due to his beliefs. However, in his oral evidence at the interview, he told the delegate that, in 2009, he was stopped and arrested by a police officer in front of a hotel, where a friend was staying. His friend was visiting from [Country 3]. He was ‘hosting and welcoming’ her as his guest and she had offered to accompany him to see how he was planning for a concert he had organised. A two-way device he was carrying was confiscated by the police and he was told to accompany the police officer to the police station. He was then held in a holding cell overnight. Subsequently, he was handed to the SSIS. He was detained, questioned and mistreated for [number] nights before being released through the intervention of an acquaintance. At the Tribunal hearing, the applicant provided a different account, stating that he was arrested in 2010 by the police while waiting in front of a hotel in order to pick up his ‘assistant’, who was helping him organise an event. He was held overnight and handed over to the SSIS. He was released after he was able to contact his acquaintance.

33. The inconsistencies in the applicant’s evidence were discussed with him at the hearing. He explained that he did not mention this incident in his statement because he did not go through ‘every piece of detail’ in English and that the most important issue was that he was stopped. He said perhaps he had confused the dates. He is not good at writing and he waited until the interview to provide the details. He added that the person he was waiting for on that day was a friend and a fellow [club member]. [Country 3’s] [club] branch was under the authority of Egypt’s [club]. He was [an office bearer of the club in] Egypt and he was in contact with other branches. The applicant did not respond to the Tribunal's s.424A letter.

34. The discrepancies in the applicant’s evidence in relation to the incident referred to are numerous and significant. The Tribunal did not find the applicant’s explanations satisfactory. The Tribunal is not persuaded by the applicant’s claims that he had not provided details in his statement, that he had confused the dates or that he is not good at writing. The applicant’s evidence casts serious doubt on the veracity of his claims.

35. Thirdly, in his application for a protection visa, the applicant stated that, in January 2011, he was attacked ‘in front of’ his then fiancée, [Ms A], by a group of Sunni Muslims in his neighbourhood after they had seen him with other Koranists on a prior occasion. The attack resulted in him being hospitalised for [number] days.

36. In his oral evidence to the delegate, however, he said, in January or February 2011, he was attacked by a group of Sunni Muslims from his father’s neighbourhood in front of his fiancée at his home, which was located in a different neighbourhood to the one his father resided in. These people came to his house and started an argument. He was beaten and punched, which resulted in him being hospitalised for [number] days. He could not report the matter to the police because at that time police had no authority.

37. At the Tribunal hearing, the applicant’s narrative changed again. He stated that, in January 2011, he was walking in his neighbourhood with his fiancée when he was approached by a group of Sunnis known to his father. They verbally abused and assaulted him, which resulted in him suffering facial bruises. He stated that he did not require hospitalisation on that occasion.

38. At the hearing, the Tribunal took evidence from [Ms A] by telephone. [Ms A] stated that, in January or February 2011, the applicant was attacked when they were walking together. However, [Ms A] could not remember in which neighbourhood the incident had occurred. Nor could she remember if the applicant was hospitalised. When asked if any words had been exchanged between the applicant and his assailants, she stated that she could not hear as she was ‘a bit far away’.

39. The above discrepancies were discussed with the applicant at the hearing. He stated that he is confused and cannot remember exact dates. He gave the whole story, but he ‘mixed up’ things. He also stated that he is not good at talking and cannot express himself very well. These explanations did not satisfactorily explain the internal discrepancies in the applicant’s evidence. The Tribunal considers it reasonable to expect the applicant to recall where he was assaulted and whether he was hospitalised as a consequence. The Tribunal also considers it reasonable to expect [Ms A], if she was accompanying the applicant on that occasion, to recall where the assault had taken place and whether the applicant required medical treatment at a hospital. [Ms A]’s evidence in this regard was vague and equivocal. The Tribunal did not find her evidence persuasive. The applicant did not respond to the Tribunal's s.424A letter. The Tribunal finds the applicant’s evidence in relation to the claimed incident in 2011 unreliable and lacking in credibility.

40. Fourthly, in his application for a protection visa, the applicant stated that, in 2012, he was ‘attacked and held again’ by the SSIS. He was tortured because of his religious beliefs. The SSIS targeted small ‘religious factions’ to prevent what they considered straying from mainstream held view of Islam. The applicant did not claim to have been seriously injured or requiring hospitalisation on that occasion.

41. In his evidence at the interview, the applicant told the delegate that, in 2012, he was again arrested and detained by the SSIS for [number] days. He stated that, on that occasion, he was not [assaulted], but he was warned that this might happened to him if he was arrested again. He did not claim to have been seriously injured or requiring hospitalisation on that occasion.

42. In support of his application for review, the applicant submitted copy of a medical report issued by [a hospital], stating that he was admitted to the hospital on [date] September 2012 and discharged on [date] September 2012. The report states that, at the time of admission, he was ‘brutally beaten’ and suffering from bruises and wounds. There was also evidence of [specified violence].

43. At the Tribunal hearing, the applicant claimed for the first time that, following his detention in 2012, he was hospitalised for [number] days. He claimed that he was punched and [abused]. [Ms A] also stated that the applicant had been hospitalised on that occasion.

44. The inconsistencies in the applicant’s evidence were put to him at the hearing. He responded that the reason he had stated he was hospitalised in 2012 was that he could not remember the dates and when he asked his [sibling], he was told that it was in 2012 that he was hospitalised. His [sibling] also told him that [he/she] would get a medical report and send it to him. The applicant did not respond to the Tribunal's s.424A letter. The Tribunal does not find it persuasive that the applicant had been unable to recall when he was hospitalised if he had sought medical treatment in connection with serious injuries sustained following a significant encounter with the authorities. The applicant’s explanations also do not adequately address his evidence to the delegate, expressly denying that he had been [assaulted] on that occasion. The Tribunal is unable to reconcile the inconsistencies in the applicant’s evidence. [Ms A]’s evidence did not resolve the Tribunal's concerns. The Tribunal has significant doubts in relation to the veracity of the applicant’s claims and it is not prepared to accept these claims.

45. Fifthly, in his application for a protection visa, the applicant stated that his [sibling], who shared his Koranist beliefs, had relocated to Upper Egypt to avoid persecution. At the interview, he stated that his [sibling] was residing in [Town 1], West Egypt after moving to that location from Upper Egypt. At the Tribunal hearing he claimed that his [sibling] had in fact returned to Alexandria three or four months after escaping to [Town 1] in 2012 and [was] living in Alexandria before the applicant departed Egypt for [Country 1] and Australia in August 2013. When asked why nothing had happened to his [sibling] in Egypt, the applicant claimed for the first time that his [sibling] had decided to revert back to mainstream Sunnism in order to hide [his/her] Koranist beliefs.

1. The inconsistencies in the applicant’s evidence were put to him at the hearing. He explained that he cannot express himself when speaking either in English or Arabic. He was asked by the delegate if his [sibling] had run away, but he did not tell the delegate that his [sibling] had come back. The applicant did not respond to the Tribunal's s.424A letter. The explanations provided by the applicant at the hearing do not address the Tribunal's concerns and the Tribunal is unable to reconcile the discrepancies in the applicant’s’ evidence.

2. Sixthly, in his application for a protection visa, the applicant stated that, due to his religious beliefs, his father evicted him and his [sibling] from the family home. He also refused to give him any share of the inheritance he was entitled to after his mother’s death. At the interview, the applicant claimed that, after being evicted, he supported himself financially by relying on his employment and his mother’s inheritance. At the hearing he stated that his father had refused to give him his share of inheritance. When his previous evidence was put to him, he claimed that his inheritance consisted of assets and investments and when his mother passed away his father had authority to deal with his mother’s estate. However, he could still access the interest but not ‘the whole thing’. The Tribunal found the applicant’s explanations improvised and unpersuasive. The applicant did not respond to the Tribunal's s.424A letter. The inconsistencies in the applicant’s evidence casts doubt on the veracity of his claims.

3. At the interview, the applicant told the delegate that he was an active member of the National Democratic Party (NDP) of Egypt. He also claimed that he was actively involved with a foundation set up by former President Mubarak’s son, Gamal Mubarak. At the Tribunal hearing he stated that, whilst he supported the NDP, he was not a member of the party. He also stated that other than organising leadership seminars for young people, he was not involved in any other political or party related activities.

4. Finally, the applicant arrived in Australia [in] August 2013. However, he did not apply for a protection visa until [November] 2013. At the hearing, he explained that he was looking for a lawyer to write his story in English and Australia was a foreign country. The Tribunal is not persuaded by this explanation. The applicant is highly educated and reasonably well-travelled. He has claimed that he had left Egypt due to his fear for his safety. The Tribunal is of the view that if the applicant was subjected to harm in Egypt and he genuinely feared being harmed, he would not have waited some three months after arriving in Australia to lodge his application for a protection visa. The applicant’s delay in lodging his application for a protection visa casts doubt on the genuineness of his fear and the credibility of his evidence.

5. Moreover, according to his evidence to the Tribunal, before coming to Australia, the applicant travelled to [Country 1], remaining in that country for [number of] days. When asked why he had not applied for protection in [Country 1], he said he was in meetings most of the time with his boss, he had no ‘network’, he did not have anyone to help him, the cost of his trip to Australia was covered by his company and his [sibling] knew someone in Australia. The applicant also travelled to [Country 2] in February 2011, remaining in that country for a period of six months. According to his evidence, he undertook this trip after his claimed assault in January 2011. However, he did not seek asylum in [Country 2]. The applicant explained at the hearing that he returned to Egypt from [Country 2] because he wanted to be with [Ms A]. In the Tribunal's view, if the applicant genuinely feared being harmed in Egypt for the reason of his religious beliefs, he would not have failed to seek protection in [Country 2] or [Country 1].

6. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve an immigration outcome. The Tribunal, therefore, does not accept that the applicant was or that he is a Koranist. The Tribunal does not accept that the applicant associated with Koranists in Egypt or adhered to or practised Koranist beliefs. The Tribunal does not accept that the applicant was a member or supporter of the NDP. The Tribunal does not accept that the applicant’s [sibling] is a Koranist or that [he/she] adhered to or practised Koranist beliefs. The Tribunal does not accept that the applicant’s father evicted him from the family home or refused to give him his inheritance due to his beliefs. The Tribunal does not accept that his family regarded him as an apostate and believed that he should be killed. The Tribunal does not accept that he was forced to practise his religion in secret due to fear of retribution from family members, neighbours, friends and the authorities. The Tribunal does not accept that he was ever threatened, harassed, assaulted or otherwise harmed by anyone in Egypt due to his religious beliefs. The Tribunal does not accept that he was arrested, detained and mistreated by the authorities in Egypt. The Tribunal does not accept that he was hospitalised as a result of any assault or mistreatment directed at him by anyone for the reason of his religious beliefs. The Tribunal does not accept that he was forced to divorce his ex-wife for the reasons he has provided.

7. The Tribunal has considered the Medical Report submitted by the applicant in support of his case. However, having regard to the fundamental lack of credibility in the applicant’s evidence throughout the process, the Tribunal is not prepared to give any weight to this document. The Tribunal has also considered [Ms A]’s oral evidence to the Tribunal. However, the Tribunal did not find [Ms A]’s evidence persuasive. Her evidence failed to address the Tribunal's serious concerns in relation to the many deficiencies in the applicant’s evidence.

8. For the reasons outlined in paragraphs 30 to 50, 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 to Egypt, there is a real risk that he will suffer significant harm for the reasons he has provided.

9. Having carefully considered the applicant’s evidence, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

10. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant has been harmed in the past in Egypt or that, if he were to return to Egypt now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in Egypt. 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).

11. 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).

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.

    Shahyar Roushan
    Senior Member