1509697 (Refugee)

1509697 (Refugee) [2015] AATA 3413 (24 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509697
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Sean Baker
DATE:24 August 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 August 2015 at 3:28pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Egypt, applied for the visa [in] March 2015.
The applicant claimed in his protection application that:
·When he was serving in the army he was involved in an altercation with his captain. He was punished by being [assaulted] which has left scars all over his [body]
·He did not seek help in his country because at the time of the incident the military was in a position of power and there were no avenues of help available.
·In an attachment he stated that if he went back he will go to the army again, he will be hit and go to jail and tortured, he reported that last time and now it will be worse, and secondly that he had an accident on the highway and her family are threatening him.
·In earlier interview he indicated that he had trouble with his family because of his sexuality.
He provided a copy of his Egyptian passport.
The applicant was interviewed [in] April 2015 and provided a more detailed statement and a number of documents to support his claims including:
·Judgment of the [Court], dated [date]/11/2003, stating that the applicant was convicted to three months of imprisonment and a fine for negligent driving causing physical damage resulting in death to [name deleted].
·Judgment of the [Court] (without a date) deciding that the applicant's right to appeal had lapsed.
·Receipt proving the date of the cassation court hearing — [date]/11/2004.
·Statement made by a [lawyer], claiming that the applicant left Egypt and remained overseas because the family of the person who suffered physical damage in a car accident caused by the applicant "chased and threatened" the applicant and because the Recruitment Administration requested him to join the armed forces in 2012, 2013 and 2014. The above statement claims that avoiding military service is against the law and that the applicant will be therefore tried and found guilty by an Egyptian military court.
·Notification of the reserve service (no date) stating that the applicant has been assigned to a reserve [unit] and directing him to respond if he is recalled for military service.
·Membership cards showing applicant's membership of two Sydney [clubs] which he claimed were gay clubs
·Reports in relation to military trials and protestor deaths in Egypt.
·An untranslated document which the delegate identified with the help of an unaccredited translator as a discharge certificate that was issued to the applicant on [date]/06/2008, stating that he completed his military service of two years, [number of months] and [number] days on [date]/03/20007 and will remain a part of the military reserve until [date]/03/2016. It was also translated as stating that he was a person of a good character and his service was exemplary.
In his more detailed claims he set out the abuse he had suffered after he joined the Egyptian army [in] July 2005. He states he was tortured by his captain, and details humiliation and abuse he suffered. He states he was traumatised by his experience in the army; he lived a fearful life and sometimes felt suicidal during his time there. He was moved to [City 1] for the remainder of his service and was bullied and pushed around by his captain who threatened to kill his family. He was thrown into military jail for his behaviour and his captain told his mother that he would make the applicant another of her daughters because the applicant would be raped in jail. He was in the army for [number] years. The Egyptian military now control the government and suppress demonstrators. The military council summoned all young people for military service and those who refuse will be tried by the military court and be imprisoned or executed. If he returns to Egypt he will suffer additional military service in Egypt but as he does not recognise the military coup and does not want to share the military coup of committing crimes against humanity and against the innocent people he refused this recall so if he goes back he will be forced to kill demonstrators or be killed by the army or be given an unfair military trial.
At interview the applicant also claimed that during his time in the military prison he was sexually assaulted by the other inmates. He did not report these incidents to military authorities out of fear for more punishment because he knew that he was deliberately targeted on orders from his commanding officer.
At interview, the applicant claimed that he is bisexual and fears returning to Egypt for this reason. He said he frequented gay clubs in Sydney on a search for random sexual partners. He never had an ongoing relationship with a person of the same sex though and limited himself to one-night stands only. He claimed that he was unaware of his sexual interest in males previously and discovered it only after being in Australia for three years. He fears being harmed by his father because of his sexuality.
The delegate refused to grant the visa on the basis that the delegate found the applicant had provided inconsistent and conflicting evidence, did not accept that the applicant was homosexual or bisexual, found that his claimed fear of being re-drafted into the army and undergoing torture and abuse as a member of the reserves was not well founded, and that his fear of retribution from the family of the woman he hit with a car would not lead to him facing a risk of harm on return.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.[1]
[1] In this case DFAT Country Report – Egypt, 28 January 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will face a real chance or real risk of harm on return to Egypt for the reasons he claims or any other reasons. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
On the basis of the copy of his Egyptian passport, and with no evidence to the contrary, I find that the applicant is a national of Egypt and is who he claims to be. I find that he was a resident of Damanhur in Beheira governorate of Egypt apart from time spent in [City 1] during his university study and in Cairo after his military service.
The applicant states that he does not have a right to enter and reside in any third country. There is no evidence to the contrary and I accept his claims and find that he does not have a right to enter and reside in any third country.
Further information
The applicant provided documents to the tribunal including:
·A letter from his mother which states the applicant travelled to Australia for studying to avoid his father’s acrimony, he has been detained in [two detention centres], pleading he not be sent back as his father will kill him and that he is afraid of his father, and signed by the applicant’s mother with two witnesses.
·A letter from [his] manager, [company name], clarifying that the applicant didn’t steal anything to the value of [amount] from their [premises] in [suburb], [items] that were taken were returned the same night, and that the applicant has been working with their company for the past [number] years prior to the incident and was a hard working individual during his employment.
·An e-ticket receipt for the applicant to travel from Sydney to [one country] and then Cairo [in] March 2015.
·Copies of the documents provided to the Department
·A psychological report from a clinical psychologist with [an agency], dated [in] April 2015, which states that the applicant has had suicidal ideation both in Egypt before arrival and in Australia, and has acted on this to an extent, that he reports experiencing ongoing Post Traumatic Stress Disorder (PTSD) symptoms and associated anxiety as well as depression, and that his depression and anxiety symptoms were clinically relevant. The psychologist noted that detention was reported by him as being a trigger for his PTSD symptoms. It was recommended that he undertake ongoing psychological treatment and counselling focusing on his symptoms and stress reduction strategies. A comprehensive psychiatric assessment was also recommended.
The applicant also included a personal statement:
·He came to Australia in 2008 as an international student and lived here for 8 years, 3 legally and 5 years as an ‘illegal’. He overstayed his visa because he did not have enough money to extend his visa as his father stopped paying him when he discovered the applicant was a bisexual person and as a student he could not work more than 20 hours a week.
·His father is a very strict and conservative Muslim. He was always screaming, shouting and hitting the applicant all the time since his childhood because the applicant did not follow Islam properly and loved to watch TV and movies and listen to music. His father would not give the applicant money to go out and purchased him second hand clothes. He says that his father is his biggest enemy.
·He is bisexual which is why he went to gay [clubs] in Sydney every weekend. He felt comfortable with the gay boys. Then his [friend] who lived in Sydney returned to Egypt and told his father that the applicant is a gay man and goes to gay clubs. His father told the applicant over the phone that he would kill the applicant if he returned to Egypt. The applicant’s uncles, aunts and cousins are against him because he is a bisexual person. If he returns his relatives will kill him straight away. He cannot relocate as his relatives live all over Egypt.
·He recounted the accident in which he hit a woman and she was injured seriously. He took her to hospital and she was in a coma and when she woke was in a wheelchair. The applicant was arrested and in custody for 2 days before being bailed. He got a letter during his time in the army summoning him to court. The judge told the applicant he was not guilty but he was [fined].
·A couple of years ago his mum called him and told him that the lady had died and her family started looking for him and her father made a case against the applicant, and her family are on the lookout for him returning, and if he returns the police will catch him and he will go to jail.
·He suffers depression and anxiety because of these events and he cannot sleep or eat well.
·When he was in the Egyptian army these were the worst days of his life with mental trauma and physical stress, depression and anxiety. He had a problem with his captain and was sent to jail for [number] months and he was gang raped there. He will never forget these bad memories.
·Immigration detention reminds him of his army days.
·He admits he made a mistake and broke Australian immigration law.
A further submission included a complaint dated [April] 2013 made to [a] police station centre by [the] father of the woman injured/killed by the applicant in the accident. The complaint states that [her father] wishes the applicant to be tried again or Haraba in relation to the applicant, and states that [her father] is making this complaint after keeping quiet all this time because his daughter was only injured but injury caused death. Also included was a further copy of the same letter from his mother, and a translation of a document which it appears was the untranslated document provided to the delegate - a certificate dated [date]/3/2007 of the performance of military service by the applicant which states that the applicant has ended his military service of length [number] days [number of months] and 2 years [in] 3^rd month, 2007, and because of the shift to reserve forces, will end his length of service [in] 3^rd month 2016. It notes his degree of in-service manners were bad. On the reverse it notes that he served an additional period of service of [number] months and [number] days. It notes that he must attend when called for standby service on the calling instructions.
The applicant attended a hearing by video link on 14 August 2015. The hearing was assisted by an interpreter in the Arabic and English languages.
After the hearing, on 18 August 2015, the applicant provided what appeared to be the same undated appointment notification of the reserve service, it appears for the year 2012/2013, as well as two untranslated documents which may, from their format, be the same or similar notifications of the reserve service. On 21 August he provided a ‘summary of psychological treatment’ dated [in] July 2015 provided by a counsellor from [an agency] for the mental health team at [immigration] detention centre. This notes that the applicant did not express any suicidal ideation and needed ongoing support and treatment from the agency]. It indicated that he disclosed his sexuality and gender identity but does not go into greater detail.
Mental health
I have had regard to the psychologist report provided pre-hearing, the applicant’s evidence at hearing and the counsellors report provided after the hearing in relation to his symptoms of PTSD, anxiety and depression. I attempted to make the hearing as supportive as possible in the circumstances. I have had regard to the reports and his evidence in considering whether the applicant was meaningfully able to participate in the hearing. He was able to follow the process of the hearing, respond to questions, and to give explanations for concerns expressed. I find therefore that the applicant was able to meaningfully participate in the hearing for the purposes of s.425.
The reports provided establish, I accept, that the applicant is suffering from symptoms of PTSD, anxiety and depression. I have considered whether these symptoms may explain any of the identified inconsistencies and credibility concerns expressed below. I do not accept that they do. The below concerns relate to significant inconsistencies in his claims and between his claims and the documents he has provided. There is no basis in the reports provided for me to make a finding that these significant credibility concerns are explained by his symptoms.
I do not accept that the reports establish the basis for the applicant suffering these symptoms, because in this respect they are based on the applicant’s self-reporting. For the reasons below, I have found that the applicant is not credible or a witness of truth. I therefore do not accept those elements of the report that detail the applicant’s claimed prior experiences, or that these experiences are the basis for his symptoms.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).
This case raises considerable credibility concerns. The applicant’s evidence contained significant inconsistencies and implausibilities, the most significant of which I have set out here, which lead me to have considerable concerns with that evidence and his overall credibility.
The applicant’s sexuality
As appears clear from the above, the applicant’s claims have varied over time in the weight he has given to the various integers, including his sexuality. Whilst I accept that the disclosure of sexuality may be a difficult and problematic process for individuals, together with the following significant concerns, I find that his claims over time in relation to his sexuality have varied dramatically, and that this causes me concern about his credibility in relation to his claimed sexuality and general credibility.
I questioned the applicant about his sexuality, his understanding of his sexuality and how he felt when he realised his sexuality coming from, he claims, a conservative Muslim family and culture. His responses, especially in relation to this last question, were vague and appeared to be in conflict with his claims to have grown up being told homosexuality was haram or forbidden, and punished with death. Despite claiming this, when I asked how he felt when he realised he had a homosexual orientation he said he felt safe and comfortable, and when I explained that this seemed strange given what his family and society had told him, he said that to be honest he was not following his religion and did not go deep into his religion and he likes to have sex with boys. I do not find this explanation convincing of what I consider would be a significant contradiction between what a person has been told and their emerging understanding of their sexuality. That is, where a person has been told consistently that homosexual/bisexual people should be killed, to come to the realisation that you identify with these group/groups would lead, I consider, could reasonably be expected to lead to confusion and self-doubt. The applicant was not able to explain clearly or in a coherent way why he had no negative feelings about his realisation of his sexuality.
However, of more concern was his inconsistent evidence about the timing of his realisation of his sexuality, his identification of his sexuality, and his first same-sex experiences. At hearing the applicant claimed that he was a homosexual. I confirmed that he claimed to be attracted to men, and not women. I asked if he identified as a bisexual and he said he did not, just males. He said that he came to the realisation of his homosexuality when serving in the army, and had sex with other soldiers many times. He said that after he was discharged from the army people in his community were talking about this. His father found out and his father and his cousins tied up the applicant and beat him. Pursuant to s.424AA I set out this information to the applicant alongside information he had given orally to the delegate, which I indicated I considered materially different – he had said at his protection interview that he was bisexual. He has said that he only realised he was interested in males three years after he came to Australia. I explained the information and the relevance. The applicant elected to respond immediately. He said that he had not told different stories; he had said he was a gay or bisexual, he didn’t know if he was a gay and was a bisexual as well. I noted that even if I accepted this explanation, it did not explain the inconsistent evidence about his realisation about his sexuality and sexual experiences. In response he said that when he was transferred from [detention] it made him crazy, he is not a criminal and he had many officers on him and he is confused and cannot sleep well. He said that his roommate tried to hang himself, and that two weeks ago someone died. He said that he did not need protection he just needed to have a study visa, and he did not need a protection visa, just to feel safe. He said that if he had to return to Egypt he would kill himself here. I noted I would make the detention provider aware of these threats of self-harm.
I have considered the applicant’s claims in relation to his sexuality and I find that in relation to these claims he has not been credible or a witness of truth. I find that he provided inconsistent claims about his sexuality to the delegate and to me. I have considered whether he was unclear about or there were translation difficulties around the concepts of homo/bisexual, but I do not believe so – at hearing he was clear that he was attracted only to men and not women, and specifically said he was not bisexual. Even were I accept that this is a confusion in terminology, it does not explain his more important information about the timing of his realisation that he was attracted to men and had sexual relationships with them. I find on this basis that the applicant is neither homosexual nor bisexual and has not engaged in any homosexual activity, in Egypt or Australia. I find there is no reason he will be considered to be homosexual or bisexual on return to Egypt, because he has completely invented these claims. Whilst I accept that he has membership cards for two clubs which he identifies as gay clubs in Sydney, I do not accept on the basis of the above that he has gone to these clubs, picked up men and had sex with them in Australia. I find that he has obtained these cards for the purposes of his claims for protection and not because he wishes to be members of these clubs or identifies with these clubs or their clientele. Whilst, on the documents, I am prepared to accept that he may have had to go to these clubs to get these cards (although he has included an envelope which appears to indicate one card was posted to him), I do not accept that he will face a chance of harm for attending these clubs for the purposes of getting the cards, and I find that there is only a remote, as opposed to real, chance that his family or anyone else in Egypt will discover that he may have attended these places to get these cards, assume he is gay, and harm him for this reason or any other. I do not accept that attending these clubs to obtain the cards will impute the applicant with homosexual or bisexual sexuality. For the same reasons as above I also do not accept that he has had consensual sex with men in the army in Egypt. It further leads me to have concerns with the applicant’s overall credibility.
The motor vehicle accident
The applicant has consistently claimed that he hit a woman in 2003. At hearing he said that he was driving on the highway from Damanhur to [City 1] when he hit a woman. He picked her up and took her to hospital. She had injuries to her head and legs. She lost a leg and was in a wheelchair after that. The applicant was questioned and charged by the police. He said that when he was in Australia he heard she had died, and then her father went to the police and made a report that the applicant should go to jail or be killed. I asked if the applicant was charged and convicted. He said he was and had to pay [an amount of] pounds and had a three month jail term if he was not of good behaviour. I asked him to confirm that he had heard she died after he came to Australia and he said he did. I asked when she had died and he said he did not know exactly but he thought between 2012 to 2013. I noted that the court documents and lawyers letter he had provided indicated that the woman had been killed in the accident or shortly after because he had been charged with wrongful death in 2004, and I asked how he could have been charged with that if she had died in 2012 or 2013. In response he said that the translations in Egypt were so bad. I noted I did not accept that argument as the lawyers’ letter and court documents appeared to agree on this.
On the basis of the documents provided by the applicant, the court judgment and the letter from his lawyer, I find that the woman died at the accident or shortly after, that the applicant was charged and convicted and given a penalty in relation to this in 2004, and that for these reasons there is no reason her family would now be seeking to harm him now or in the reasonably foreseeable future. I give no weight to the claimed police report from the woman’s father dated [in] April 2013 because the information in it is directly contradictory of the earlier and consistent documents from the Court and the applicant’s lawyer. I find therefore that the father and family of the woman killed by the applicant are not seeking to have him arrested, killed or harmed in any way, the court process in relation to her death having been concluded in 2004.
The applicant’s military service and obligations
Earlier in the process this was put forward by the applicant as the most significant claims and reason why he could not return to Egypt. The applicant detailed his experiences in the military, as set out above. He said that he was made to spend further time there, and that he may not be called up to serve in the army again, which he would not do. I noted to the applicant country information which indicated that a reservist must be in the military reserve for 9 years, but that the cut-off age for the reservist draft is 30 years old.[2] He did not directly respond to this. He also claimed that he had been called up whilst in Australia, and indicated that one of the documents provided, untranslated, indicated this. He said that this letter indicates that he has been called up to the reserves. I noted that the letter he was referring to appeared to indicate that he had been assigned a unit, but told him to wait to be called up (‘Wait an order to recall you anytime and you should respond)– and that I interpreted this as an appointment of his reserve unit but not a call up to do reserve duty. He said that they are asking him to go back to the army. The interpreter was willing to translate the document which confirmed the translation already supplied. When I noted that these documents did not appear to be doing this, he then said that there is a possibility of them calling him up to serve. I noted again the country information that I considered made this clear. I noted to the applicant that his answers in relation to whether he was called up to the reserves caused me to have further concerns about his overall credibility because they were vague, evasive and inconsistent. He did not directly respond.
[2] DFAT Country Report – Egypt, 28 January 2014 at 3.106, 3.109, 5.29; Miller, J., 2011 ‘Egyptian Army Calls Up Military Reservists to Help Keep Peace’, 14 February, Fox News -
I have had regard to the documents provided after the hearing. One, in English, appears to be the same document discussed at the hearing, an assignment of reserve unit for the applicant for the years 2012/2013. The other two are untranslated but appear in the same format as that discussed at the hearing which the interpreter was able to roughly translate. I have had regard to the following facts in deciding to give these documents less weight and do not consider that they establish that the applicant has been called-up for reserve service – they appear in the same format as that translated by the interpreter at hearing. They have been provided late in the process, after the applicant has had considerable opportunities to provide evidence and has been put on notice that his claims in this respect have been doubted. I therefore give these less weight. Related to this I have decided not to have these translated given the above and because the credibility of the applicant is already independently doubted for the reasons above and below.
On the basis of the information before me, I accept that the applicant’s behaviour may have been ‘bad’ as noted in the translation of his service, and that he was required to do additional months of service, but I do not accept, on my credibility findings and because he has changed his evidence over what has occurred during the time in the military, that he was sexually assaulted, jailed in a military prison for the disagreement with his superior, or bullied and assaulted in his military service. I do not accept that his poor service record leads to any current or future harm or creates a circumstance where he may be harmed. I do not accept that this leads to any ongoing chance of serious or significant harm. The applicant, as he conceded at hearing, is over 30 years of age. Notwithstanding that his certificate of performing military service indicates he ends his service in March 2016, I do not accept that he will actually be called for reserve service if he returns to Egypt now because he is over 30 years of age and the country information is very clear that 30 years of age is the cut-off for recall to the reserve. I give this country information significant weight and find that there is no chance or risk that the applicant will be recalled for reserve service on return to Egypt now or in the reasonably foreseeable future. Further, I have had regard to the documents supplied by the applicant and I do not accept that the information before me indicates that he has been called up in the past to do reserve duty at any stage. I therefore do not accept that he will be fined or sent to a military court, sent to military prison, forced to commit crimes against humanity or kill demonstrators or punished in any way.
The applicant’s delay and purchase of a ticket to return
The applicant has given evidence in relation to his behaviour in Australia which leads me to further doubt his credibility and his claimed subjective fears of returning to Egypt.
As the applicant indicated at the hearing, and as evidenced by the e-ticket receipt he provided, the applicant was previously planning to depart Australia and return to Egypt in March 2015. He said that since he was in [detention] he felt bad and purchased his own ticket to go back to Egypt. He had asked if he could go to any other country but was told he could not. He said he was stressed and tried to kill himself one time in [detention]. He said he then called his mum and she said that if he came there he would die, as his father would kill him. I noted that he had already claimed in the hearing that his father had threatened to kill him on the phone four years ago, so his mother was telling him what he already knew. He said that he was under so much stress but when he decided to leave he got a ticket, and his mum told him don’t come. He said he was intending to go back to live somewhere else and stay with anybody else in a different area, but she told him probably they are going to pick you up from the airport. I asked who was going to pick him up and he said the police.
I do not accept these explanations. They do not explain in any way why the applicant, who claimed to have been beaten by his father and cousin’s in Egypt on the suspicion that he was gay, and then having his father threaten to kill him over the phone 4 years ago, which the applicant indicated that he believed was a threat his father would carry out, would purchase a ticket to return and then decide not to when his mother warned him his father would kill him. I do not accept that he was planning to go somewhere else but that his mother told him the police would pick him up from the airport – this explanation changed as I noted to the applicant my difficulties with his evidence.
Further, the applicant was not able to explain why he had not applied for protection earlier. At hearing I explored with the applicant his claims and his travel to Australia. He stated clearly that he had travelled to Australia as he could not live in Egypt. He stated clearly that he was aware that his student visa ceased in 2010. I asked if he was concerned he had no lawful right to remain in Australia from this time. He said he did not know what to do and did not know the rules of immigration. I noted he had been in Australia for almost 8 years and had only applied for protection when detained. I asked why it took him so long to apply. He said he only came to know of protection when he was put in [detention] and he could not speak English well. I noted that I may not accept this because he had applied for his student visa, the information on protection was available in Arabic,[3] was available in the community, he was university educated and he had been aware his student visa had ceased in 2010. The applicant did not directly respond. I do not accept his explanations for his delay in applying. I consider that the factors I set out to the applicant indicate that, had the applicant been in fear of returning, he could have accessed protection earlier than he did so. I find that the applicant did not apply for protection earlier – if not at the time his visa ceased in 2010, then around the time his father threatened him some four years ago. I find that he did not apply for protection earlier because he did not, and does not, fear returning to Egypt for the reasons he claims.
[3]
My findings on the applicant’s abandoned intention to return to Egypt, and his delay in applying for protection lead me to further doubt his credibility.
On the basis of the above findings I find that the applicant is not credible or a witness of truth. For the reasons above and on my general credibility findings I find:
·I do not accept that his father is a very strict and conservative Muslim who was always screaming, shouting and hitting the applicant because the applicant did not follow Islam properly and loved to watch TV and movies and listen to music. I do not accept that his father is his biggest enemy. This is because of my general credibility findings, combined with his evidence in relation to the treatment of his father which changed dramatically over the course of the hearing – for example at first claiming that his father and cousin’s beat him for his suspected homosexuality and he had to run away and go to Cairo, but then when I noted he had said his father supported him financially for three years in Australia until his father found out form a friend that the applicant was going to gay bars he cut him off, he retreated from his evidence that his father had beaten him for his suspicion and that he had run away. His evidence in relation to the conduct of his father was not consistent and I do not accept his claims that his father is strict and conservative, a member of the Muslim Brotherhood, punished and shouted at the applicant in childhood for not following Islam or any other reason.
·Related to this, I find that the applicant’s community did not know or believe that he was homosexual and were talking about this, I do not accept that his father came to know of this and with the applicant’s cousins tied him up and beat him;
·I do not accept that the family of the woman he harmed are seeking to have him arrested or harmed, have chased or threatened him, or have any ongoing interest in him whatsoever, and I place no weight on the police complaint said to be from her father, and little weight on the letter from the applicant’s lawyer in this regard, findings this to be self-serving towards the applicant and inconsistent with other evidence provided;
·Whilst I accept that his conduct was ‘bad’, and he had to do additional service because of this, I do not accept that the applicant was jailed during his military service for a disagreement with his commanding officer, that he was sexually assaulted during his service in the army or at any other time, in particular because his evidence of his treatment in the army has changed over time. I do not accept that anyone in the army informed his family that he would be or had been sexually assaulted;
·I find that the applicant will not be called up to the reserves and will not go back to the army again in any capacity, and therefore I find that he will not be bullied in the future in the army, will not be hit and go to jail and tortured;
·I find that the applicant has had no trouble with his family or anyone else for his sexuality, which I find is not homosexuality or bisexuality;
·I give the letter from his mother no weight, this letter is inconsistent with other evidence and is not supported by the credibility and other findings above. Before the hearing the applicant indicated he wished his mother to give evidence. He did not bring this up during the hearing and so she was not called as a witness;
·I give the letter from [his work manager] no weight – again, this letter is inconsistent with my findings above and is not relevant to the applicant’s claims but to the criminal conviction of the applicant in Australia, which I do not consider relevant to his claims and has not been put forward as a basis or a contributor to his claimed fears of harm.

I have had regard to the reports from the psychologist and counsellor. As above, I accept that the applicant suffers symptoms of PTSD, anxiety and depression. As above, I do not accept that they explain any of the credibility concerns above, nor that these reports establish the basis for the applicant suffering these symptoms being the events he claimed have happened to him. I find that the evidence in the psychological reports does not corroborate the applicant’s claims that he faced harm in the military or from his family in the past, or for any other reason connected with his claims. I give these aspects of the claims, which are based on the self-reporting of the applicant, no weight, on the basis of my credibility findings above. On this basis I specifically reject that the psychological reports corroborate or establish or lend weight to his claims to be homosexual/bisexual, given my findings above, I specifically reject that the reports corroborate or establish that he was harmed in the past in his military service or by his family, given my findings above. I specifically reject the claims of the applicant, repeated in the report from the psychologist, that he had suicidal ideation in Egypt, given my general credibility claims. In relation to his suicidal ideation in Australia, I note that the counsellor’s report, more contemporaneous than that of the psychologist, notes that he did not express suicidal ideation. I therefore have significant doubts about his claimed suicidal ideation in Australia, but have cautiously proceeded on the assumption that this may be his state of mind, both during the hearing and in deciding his case and what will occur in the future. However, I do not accept that this corroborates or establishes any of the claimed harms, given my credibility findings.
For the reasons above, I do not accept that his symptoms of PTSD, anxiety and depression will lead to a real chance or a real risk of harm in Egypt for any reason, nor that his psychological health will increase a risk of harm to him in any way, because there is no claim that he will not be able to access psychological treatment and counselling in Egypt, nor do I accept that this will occur on the evidence before me. Given that I have found above that his father and family have not harmed him as claimed in the past, nor that he will have to undertake reserve service, nor be harmed by the family of the woman he killed, on the evidence before me I find that he will not be harmed physically or psychologically for any of these reasons or any other and he will be able to return to Egypt and his mental health will not be exacerbated by his return. I accept that he does not wish to return to Egypt, having lived here for some time, but I do not accept that this will lead to a chance of harm to his physical or psychological state.
On the basis of my findings above, I find that there is no real chance within the meaning of s.5J of the applicant being harmed for reasons of his membership of a particular social group, being a homosexual or a bisexual, or a conscientious objector to military service, or for any other Convention reason on return to Egypt, now or in the reasonably foreseeable future.
Complementary protection
Moreover, on the basis of my rejection of his claims and my credibility findings above I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that he will suffer significant harm arising from his claims above, neither from his killing of the woman in a motor accident, his service in the army or his claimed sexuality. I find that there is no real risk of the applicant’s father, his family or anyone else harming him in Egypt for any reason connected with these claims or for any other reason. I asked if there was any other reason he feared returning to Egypt and he said he was scared of himself. If, as I take this to be, this constitutes a threat of self-harm, and I do not consider that this constitutes significant harm because it is not an arbitrary deprivation of his life, in the sense that deprivation I take to indicate an element of deliberateness on the part of a third party. I do not accept that suicide can therefore come within the definition of significant harm under s.36(2A)(a), nor that it meets any of the other definitions of s.36(2A) because of the lack of a third party inflicting the harm.
Conclusions
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2015] AATA 3413

24 August 2015

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