1510418 (Refugee)

1510418 (Refugee) [2018] AATA 569 (26 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510418
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Shahyar Roushan
DATE:26 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 February 2018 at 11:16am

CATCHWORDS
Refugee – Protection Visa – Egypt – Particular social group – Homosexual – Islamic social mores – Victim of violence – Fear of societal discrimination – Fear of persecution by Morality Police – Fear of Islamic extremist groups – Muslim Brotherhood – Witness Credibility – Inconsistent evidence – Claimed timing of events inconsistent – Whether actions undertaken solely for strengthening of protection claims
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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 the Tribunal accepts is a citizen of Egypt, applied for the visa [in] January 2015.
The issues arising in this review are whether the applicant has a well-founded fear of persecution; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Egypt, there is a real risk the applicant will suffer significant harm.
For the reasons that follow, the Tribunal has determined that the decision to refuse to grant the applicant a protection visa should be affirmed.
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 themselves 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application
According to the information provided in his visa application, the applicant is an Egyptian national born in [year] in [Town 1].
The applicant claimed that he was engaged as part of an arranged marriage and that the marriage was intended to take place [in 2015]. The applicant claimed to belong to the Sunni Muslim religion and identified his ethnic group as ‘Muslim, Egyptian, gay’. The applicant provided details of his parents [and siblings] who continued to reside in [Town 1]. The applicant also provided details of one brother residing in Australia.
In his residential address history, the applicant stated that he resided in his home town until 2000 then went to the Police Academy in Cairo for a period of 10 months. From [2000] until [2008], the applicant resided at an address in [Cairo]. The applicant returned to his home town between [2008] and [2013]. In [2013], the applicant began living at [Company 1] in [Cairo].
In his employment history, the applicant stated that he was employed by the Egyptian Police Force between [2000] and [2008]. From 2009 onwards, the applicant was [Occupation 1] for [Company 1].
The applicant declared that he arrived in Australia in November 2014 as the holder of a [temporary] visa. The applicant stated that prior to his arrival in Australia, he spent [a number of] days in [Country 1] in 2014. The reason for that visit was said to be to escape persecution for being gay.
In his visa application form, the applicant stated he left Egypt due to persecution for being gay. The applicant expressed fear that he would be killed if he returned to Egypt. The applicant stated that, in the past, he had been [assaulted], tortured and imprisoned. The applicant’s claims were set out in more detail in a written statement, dated [in] January 2015.
Also accompanying the application were a copy of the applicant’s Egyptian passport, issued in [2013]; a translated birth certificate; a letter, dated [in] August 2014, from [Company 1] confirming the applicant’s employment in the position of [Occupation 1] since 2009; an invitation to a wedding between the applicant and [an individual], to be held [in] 2015; and country information relating to the treatment of homosexuals in Egypt.
The applicant later submitted to the Department a letter of discharge from the Cairo Police, dated [in] 2008; and a translated report from [Hospital 1], dated [in] 2008.
The letter from [Hospital 1] states that the applicant had received [several life threatening injuries], as a result of severe beating, which had led to [a physical impairment].
Written statement – [January] 2015
In his written statement, the applicant stated that he had always known that he was different from other boys. The applicant never had any interest in girls and was never interested in boys’ sports. The applicant had a lot of female friends and was outcast amongst the boys.
The applicant stated that he began to have feelings for the opposite sex when he was around [age] years old. The applicant did not realise that there was a term for what he was until several years later. These feelings were not easy to deal with as a Muslim from a poor family. The applicant felt trapped and struggled with his sexuality, not knowing if it was right or wrong. As the applicant grew older he wanted to explore his feelings and would go to internet cafes searching the internet ‘for men interested in men’ and ‘men with men’. The applicant then realised who he was and felt relieved that there were other people like him.
The applicant’s first sexual encounter was in 1999 as he was [age]. The applicant arranged to meet a blind date through an internet website for homosexuals. One [night] in 1999, the applicant arranged to meet with a man called [Mr A] next to [Location 1] in Cairo. The applicant told his parents that he was going out with friends and would be home late. The applicant and [Mr A] spent a [period of time] talking about homosexuality, their feelings, stigma, who to be careful of, hotspots and hook-up spots for homosexuals. [Mr A] told the applicant to be careful of the morality police and said that, according to society and the Egyptian government, they were the devil.
After a while, [Mr A] got up to go to the toilet. Whilst the applicant was waiting for him to return, a few men in civilian clothing got out of a [vehicle]. The men around the applicant got up and started running as the men from the [vehicle] began grabbing anyone they could catch. The applicant got up and went inside [Location 1] to wait for [Mr A]. The applicant was [stopped] and told that the men from the [vehicle] were the ‘adab’ police (morality police). The applicant was asked for his ID and taken to [a holding area]. There were [a number of] other men there already. When the applicant asked why he had been taken, he was [assaulted]. One of the officers accused the detainees of having sex with each other. The detainees were paired off and handcuffed together then taken to [another location].
The person the applicant had been paired off with signed a statement that had been written for him. The applicant refused to sign and was [beaten]. The applicant was then [further assaulted] and finally agreed to sign. The applicant was asked if he was a ‘top or bottom’. When the applicant explained that he did not understand the question, he was [further assaulted]. The applicant [suffered a wound as a result]. The applicant claimed to still carry the [scar].
The applicant told the officer that he had been in Cairo to meet a friend. The applicant gave the officer [Mr A]’s name and said he had been waiting for him to return from the bathroom as they were going to [undertake an activity]. The officer sent [a number of] other officers to search the bathroom but a short while later they returned empty-handed.
The officers shouted and yelled, [assaulted] the detainees then ordered them to strip. The men who refused to do so were beaten some more. The applicant complied. The men were divided into two groups – those who looked feminine and those who didn’t. The applicant was placed in the latter group. The officers proceeded to check their underwear stating that the men who wore coloured underwear were the passive or penetrated partners. Some of the men were taken into a separate room by a police officer who had a [weapon]. The applicant could hear their screams and crying. The man whom the applicant had been paired with told the applicant that this was the way the police treat people like them.
Eventually the applicant was called and expected that it was his turn to be tortured. The applicant was [assaulted] and taken into another room. An officer hit the applicant with [an object]. A senior [officer] then called in the applicant’s father and brother. The senior officer said to the applicant’s father that his son was a khawal and was caught with his khawalat. The officer told the applicant’s father to take him home and beat the devil out of him.
The applicant’s father and brother did not believe his story. When the applicant got home, his brother [began] beating him. The applicant’s father joined in. The applicant was thrown [outside]. The applicant lay there naked, cold, hungry and in pain. The next morning, the applicant was woken [up] and told that a spiritual leader would be coming to the house to perform an exorcism. The applicant asked for food and water but was told to drink from the animals’ water and to eat their food. The applicant ate some of the animals’ food and drank their water but felt severe pain in his gut and began vomiting. Eventually, the spiritual leader arrived and began to recite verses from the Koran. For several hours, the applicant was beaten and cursed while the Koran was read. The applicant eventually fainted from exhaustion. The next day the spiritual leader came to check on the applicant and told the applicant’s father that the applicant was no longer possessed and had been cured. The spiritual leader poured something over the applicant to seal the devil’s exit.
The applicant’s family were relieved, untied the applicant, fed him, clothed him and gave him medicine. They told the applicant that he was lucky to have such a learned spiritual leader to get the devil out of him, otherwise they would have had to kill him. They said that having a khawal in the family was an abomination and the only solution was death.
After thinking about the injustice and discrimination he faced, the applicant decided to become a police officer so that he could be in a position of authority and help people. [The] applicant joined the Police Academy, where he remained until [2000].
After graduation, the applicant was partnered with a man named [Mr B]. [Mr B] and the applicant were stationed at [a particular location]. Their duties were to [undertake particular duties]. The applicant and [Mr B] became close friends and rented an apartment together [in Cairo]. The applicant and [Mr B] lived together for seven years but began a relationship one night when they were discussing their personal lives. [Mr B] expressed the view that mithlyeen were human beings and have the same rights as any other person. [Mr B] stated that people like him were treated with contempt and hatred. The applicant then realised that [Mr B] was gay. The applicant reassured [Mr B] and told him that he was gay as well.
The applicant stated that in 2008, he and [Mr B] made a trip to the applicant’s home town for [Occasion 1]. The applicant asked [Mr B] to spend the night at his home before he made the journey to his own home town. The applicant’s parents thought nothing of this as the devil had been beaten out of him. The applicant and [Mr B] slept in the same bed, which was common practice when guests were over and there was not enough room to accommodate them. The applicant and [Mr B] made love in the applicant’s bed and slept naked, holding each other until the morning. The applicant’s mother came in to wake them up in the morning and discovered the applicant and [Mr B] naked in bed. She began spitting on them, yelling and screaming. Soon, the house filled with people and the applicant’s father and brother came [into the room] to see what was going on. The applicant’s mother was yelling that her son was a khawal and was in bed naked with his khawal.
All of a sudden, the applicant and [Mr B] were pounced on and beaten by everyone that was there. They used [various objects and weapons] and their hands and feet. The applicant and [Mr B] tried to fight back but were outnumbered. The applicant [a pain in a particular part of his body]. The applicant was bleeding then felt another [pain]. The applicant looked for [Mr B] and saw that he was out of the room calling to the applicant to run. The applicant mustered his energy and made his way through the mob. [Mr B] helped the applicant [escape], whilst being bombarded with [objects] from rooftops from every direction. They made their way out of the village and onto the main road and [travelled] to the nearest doctor. The doctor refused to treat them so they returned to the main road and [travelled] to [Hospital 1].
The applicant woke in hospital the next day and was told that he had received [various, serious wounds]. The applicant [required extensive treatment].
The applicant was discharged [a particular date in] 2008 and returned home. The applicant remained at home whilst [Mr B] went to work but on [a later date] decided to return to work himself in order to keep busy. The applicant and [Mr B] were not stationed together that day. The applicant got home at [a particular time] and called [Mr B] [shortly after]. Another person answered the phone and told the applicant that [Mr B] was dead. [Mr B] had been [details of death removed]. The applicant was shown his body in [and] he was buried on [a date in] 2008. The applicant expressed the view that [Mr B] had been killed by hitmen hired by his family or the police force.
The applicant became depressed and anxious and took a lot of time off work. The applicant lived in constant fear and apprehension and eventually resigned from the police force [in] 2008, [a number of] months after [Mr B]’s death.
For the next few months, the applicant stayed home and had to sell his [possessions] in order to cover the rent. The applicant felt his world had crumbled and he was lost. The applicant decided to go home and try to convince his parents that he had changed and that he would work [locally] and in the mosque and ask God for forgiveness. The applicant convinced his parents and family that he had been going through a phase and that it would not happen again. The applicant’s parents told him that the only way to prove that he was cured was to get married and have a family. The applicant told his parents that he needed [a number of] years to save up a dowry and that he needed to get a job. The applicant’s family agreed. The applicant began work with a company called [Company 1] and [studied]. The applicant also worked [for his parents] but had no friends and was an outcast amongst his community. The applicant’s parents and family didn’t want anything to do with him.
In 2013, the applicant told his brother in Australia that he was gay and what was happening to him in Egypt. The applicant’s brother was shocked at first but had become westernised after living in Australia and accepted who the applicant was. The applicant’s brother applied for a [temporary] visa which was refused. The applicant later received a death threat from the Muslim Brotherhood and started sleeping at his [workplace]. This continued until November 2014. The applicant’s brother reapplied for a [temporary] visa in 2014 and this time it was granted. The applicant slept at the airport the next day, whilst waiting to depart.
The applicant stated that he was due to marry [in] 2015 and that a dowry had been paid to the bride’s family. The applicant did not want to go through with the marriage and expressed a desire to be able to express his sexuality and have a relationship with someone of the same sex. The applicant stated that he would be in a loveless marriage, which would not be fair to him or his bride.
The applicant cited several extracts from the Koran condemning homosexuality and expressed fear that he would be killed if he returned to Egypt.
[Temporary] visa application
Contained on the Department’s file is a copy of the applicant’s [temporary] visa application.

In support of his [temporary] visa application, the applicant submitted a letter to the Department, dated [in] August 2014. Amongst other things, the applicant claimed in the letter to have very strong family ties. The applicant described his family as extremely close-knit. The applicant described his fiancée as his high school sweetheart and said he could not wait to marry her. The applicant stated that [a particular gift] had been sent by his sister-in-law in Australia as a gift [for] the wedding.
The applicant stated that he supported his elderly parents and was the sole income earner in his household. The applicant’s failure to return to Egypt would be detrimental and heartbreaking for his parents. The applicant described his parents as frail and elderly and stated that they could not [work].
The applicant described himself as well respected in his community. The applicant stated that he had been chosen by the Imam of the local mosque to [undertake particular religious duties]. [details of religious duties removed]. The applicant had been awarded a certificate of achievement in recognition of his hard and ongoing work with [particular members of the community]. The applicant said he had also been involved in [undertaking particular charitable activities].
Submitted with the [temporary] visa application was a certificate of appreciation by the management of [a mosque], thanking the applicant for his contributions and participation in [particular religious activities].
The applicant’s brother provided a letter of support for the visa application in which he also stated that the applicant was involved in [religious activities] at the local mosque. The letter states that the applicant is actively [undertaking particular religious activities]. The applicant also [took part in other religious activities]. The letter states that the applicant’s parents were dependent on him for their daily necessities.
Departmental interview
The applicant was interviewed by an officer of the Department of Immigration [in] April 2015 and the Tribunal has listened to an electronic recording of that interview.
Asked why he had lodged the application, the applicant stated he did not have a life in Egypt and suffered a lot. There was no one for him in Egypt. The applicant said there was no safety and that he would be killed in Egypt as a homosexual.
The applicant was asked to talk about his sexuality and how he discovered it growing up. The applicant said from an early age he felt different to other boys. These feelings increased and the applicant felt a sexual instinct towards boys. The applicant was unable to show his feelings because he was living in Muslim society and came from a poor, conservative family. The delegate noted that the applicant’s written statement suggested that he did not know homosexuality was considered to be a bad thing or even existed when he was younger. The applicant was asked what made him think it was a bad thing. The applicant stated that when he was young he did not know about homosexuality. Asked when he found out about homosexuality, the applicant said he found out at internet cafe when he was around [age] and did searches for ‘man with man’. Images of men having sexual relations with other men came up in his search, as did the word ‘homosexual’. After this, the applicant realised his sexual identity.
The delegate noted that the applicant’s evidence was that his feelings towards boys started when he was about [age] years old. The applicant agreed but stated that he knew he could not reveal his identity to other people. Asked how he realised he should not reveal his identity to other people, the applicant stated that from an early age he studied the Koran. The topic of homosexuality was addressed in the Koran. The applicant started to understand the stories in the Koran when he was [age].
The delegate put to the applicant that in his written statement the applicant had indicated that he did not understand about homosexuality until he was [a particular age], yet his oral evidence was now that he understood that homosexuality was viewed as sinful in the Koran from at least [a younger age]. The applicant responded that between the [ages], he was afraid that people would know about his secret. The applicant was barely able to get by in high school because of this.
When asked, the applicant stated that no one suspected that he was homosexual in high school. Asked whether he was mostly friends with males or females, the applicant said he was friends with males but felt like one of the girls. Asked whether he played with the boys or the girls, the applicant then said he mostly played with girls. The applicant said he was not accepted and the boys would not let him play [sports] with them. Asked why this was, the applicant said they thought he talked like a girl. The applicant said that from an early age he was not seen as a boy and was told he was like a girl. Asked whether he was effeminate, the applicant said he was not as strong as the other boys.
The applicant was asked about his current religious beliefs. The applicant said he was Muslim. The delegate noted that the applicant had chosen to take an oath at the commencement of the interview and asked him whether he was a practising Muslim. The applicant responded that he practised his religion time to time but not regularly. The delegate noted that the applicant’s evidence was that he had discovered at the age of [age] that Islam did not approve of homosexuality and asked the applicant whether this presented a conflict for him. The applicant responded that he mostly does not pray.
The applicant was asked about his religious practice in Egypt. The applicant stated that he had helped with a [particular religious activity]. The applicant said this was about six months to a year before his arrival in Australia.
Asked about his [temporary] visa application, the applicant stated that he told his brother and his wife in Australia about his homosexuality. At first, his brother was shocked but after discussing the matter with his wife and given that his way of thinking had started to change, the applicant’s brother decided to lodge an application for him in 2013 which was rejected. The applicant confirmed that he had told his brother that he was homosexual in 2013. Asked whether his brother knew about this beforehand, the applicant said he had heard from his parents but did not believe it.
The applicant was asked whether the information presented in his [temporary] visa application was true and correct. The applicant swore that it was all true and correct. The delegate noted that the applicant had described himself as well respected in his community and said he was regarded as a person of good character in a letter submitted with his [temporary] visa application. The applicant had also stated that he had been selected by an Imam to [undertake a particular religious activity]. The applicant responded that he was trying to appear as a normal person and the Imam of the mosque was about the same age and encouraged the applicant to participate.
The applicant was asked about his visits to the internet cafe when he was [age]. The applicant responded that the internet cafe was run by [a number of] guys and he knew one of them. The applicant had a desk by himself. The applicant said he did not know what to type so just started to type ‘man with man’. The applicant said the word homosexual appeared as well as images of men having sex with men.
The applicant was asked what year he went to the cafe. The applicant said he went in 1999 when he was close to [age]. The delegate noted that having been born in [year], the applicant would have turned [a different age] in 1999. The applicant said he could not remember what month it was but he remembered it was a [a particular night of the week]. The applicant said he went to the internet cafe two or three times. The applicant said he found the phone number of a person called [Mr A] on the internet. Asked where on the internet, the applicant said it was on a website of homosexuals. The delegate asked the applicant if he was saying that there was a website that contained a list of homosexuals and their phone numbers. The applicant said he did a search and this person’s number came up. The delegate suggested to the applicant that this seemed a very dangerous way to find partners if homosexuals were being targeted by the Egyptian authorities. The applicant responded that he was using a nickname.
The applicant was asked about his fiancée. The applicant said his parents had arranged for him to marry a relative. The applicant said he did not know her and only saw her once. Their parents arranged the marriage and engagement. The delegate noted that the applicant had claimed in his [temporary] visa application that his fiancée was his high school sweetheart and fate had it that they should be together. The applicant responded that he was trying to appear normal in front of his parents. Asked why he had said that his fiancée was his high school sweetheart, the applicant said she was his relative. The applicant said that these were normal words and he loved her as a human being but not as a wife. The applicant said he did not want her to be a victim of injustice. The applicant was asked again why he had said that his fiancée was his high school sweetheart, implying that he knew her in high school. The applicant said he did not understand the question. The applicant then said he did not go to high school with his fiancée and that she went to high school in [another location].
The applicant confirmed that his brother and sister-in-law knew that he was homosexual. Asked whether they knew that he had no intention of marrying his fiancée, the applicant said no one knew this. The delegate noted that his brother and sister-in-law were helping him to travel to Australia to live freely as a homosexual male. The applicant agreed and said Australia was a country of freedom. The delegate suggested that this indicated that the applicant’s brother and sister-in-law knew that he was not going to marry his fiancée. The applicant responded that they knew he was obliged to get married. They thought he should try to show his parents that he was normal. The delegate noted that the evidence in the applicant’s [temporary] visa application included [a wedding gift] which the applicant had said his brother and sister-in-law in Australia had sent him as a gift. The delegate asked the applicant why they had gone to this effort when they knew that he was trying to leave Egypt. The applicant said they did this to help the applicant appear normal in front of his parents.
The applicant was asked about the events of 2008. The applicant said he went to his family home [for Occasion 1]. Asked what month this occurred, the applicant said he did not recall but it might have been in [a particular month]. The applicant was asked how many people were in the house at the time. The applicant said his mother, father and [brother] were there in addition to the applicant and [Mr B]. The delegate noted that the evidence suggested that the applicant had a physically violent relationship with his family and had experienced horrible treatment from his family in the past over his sexuality. The delegate asked the applicant why he had put himself at risk by taking his sexual partner to his family home and sleeping with him there. The applicant said his family did not know that he was having sex with anyone.
The applicant said his mother woke them up then saw them and started to shout, then people started to gather in the house. The delegate asked the applicant whether his parents had let the neighbours come into their house and were happy to expose him as homosexual to their neighbours. The applicant said people heard his mother shouting and came to see what was happening. The applicant was asked how many people came into the house. The applicant said it was too many to count, then estimated that it was more than [number] people. The delegate put to the applicants that he did not understand how the applicant was able to escape from a room in which [a very large number of] people were attacking him. The applicant said it was his destiny or fate. The delegate noted that the applicant had at this point been [severely assaulted and suffered several serious injuries]. The applicant agreed. The applicant was asked how it was possible that he escaped from his bedroom on the second floor of his home in these circumstances. The applicant responded that he was sleeping on the second floor of his home. The applicant’s mother came in and saw them, began shouting and spitting at them. The applicant pushed her and grabbed his clothes and quickly put them on. The applicant’s mother was shouting and wailing. People came and then began pelting them with [objects]. Some people had [weapons].
The delegate asked the applicant about the medical certificate. The applicant said he got it from [Hospital 1]. Asked when he got it, the applicant said he asked for it when he was discharged from hospital. The applicant said he asked the doctor to give him an assessment of what had happened and how he was when he was first admitted to the hospital. The applicant said it was still [details removed]. The delegate noted that the applicant’s written statement indicated that he was discharged from hospital on [a particular day in] 2008. The statement also said that the applicant returned to work [shortly thereafter] and his partner was killed the same day. The applicant agreed. The delegate explained to the applicant that these dates were well before [the date of Occasion 1]. The applicant said he had returned home for [Occasion 1]. The delegate noted that the applicant had earlier estimated that this was in [a different month in] 2008. The applicant responded stating that he and [Mr B] were both police officers and returned to his home for the [occasion]. The applicant then said he did not recall when it was but they had returned home for the [occasion]. The delegate put to the applicant that the [occasion] was in [a particular month of] 2008. The applicant agreed and said it was not in [the same month as the medical certificate]. The delegate put to the applicant that the medical certificate then appeared to contain an incorrect date as it was dated [in a different month] 2008. The delegate commented that the dates did not match up. The applicant then stated that he was released from hospital in [the originally claimed month in] 2008. The delegate asked the applicant whether the report was a false document. The applicant asked what document the delegate was referring to. The delegate said he was talking about the document from the [Hospital 1]. The applicant said he was in hospital for [a number of] days and then left. The delegate put to the applicant that his statement said he was in the hospital for a [different duration]. The applicant then said he did not know how long he was in hospital.
The delegate asked the applicant why he had gone to [Country 1] in 2014. The applicant said he went there for a holiday. Asked whether he met anyone there, the applicant said he met [a] guy and asked him to help him stay in the country but was told that he could not help. The delegate showed the applicant photographs of the applicant in [Country 1] which he had submitted with his [temporary] visa application. The delegate commented that the photographs appeared to suggest that the applicant was on holiday rather than seeking asylum. The applicant said the man just wanted some photographs of him. The applicant said he went to the mosque to find someone who spoke Arabic. He asked the man for help to stay in [Country 1] and explained his situation but was told that he could not help.
The delegate put some of his concerns regarding the applicant’s evidence to him. In response, the applicant suggested that the doctor from [Hospital 1] might have made a mistake with the dates. When the delegate noted that the applicant had [a particular number of] scars on [a part of his body] and that the letter suggested he had [a different amount of] wounds, the applicant said maybe the doctor made a mistake about this as well.
The delegate noted that the applicant appeared to return to work quite soon after his discharge from hospital. The applicant said his wounds had been [treated]. The delegate suggested that the applicant would not have been in a fit state to return to work given that he had [severe injuries]. The applicant responded that he had to return to work and obtain leave from the police hospital. If he did not seek leave from the police hospital he would be tried in a military court.
The applicant was asked whether he had explored his sexuality in Australia. The applicant said he was still learning the language. The applicant said he got to know someone [from] Egypt. It was easy to talk to him and the applicant met him at work. This person returned to Cairo [in] February 2015 and had not come back. Asked whether the applicant was in a sexual relationship with this person, the applicant responded that he wished he was and felt this was a person he could love.
The delegate noted that the applicant had mentioned in his written statement that he returned to live with his family after his partner died. The applicant agreed. The delegate asked the applicant why he decided to return to his family home given that they had previously tried to kill him. The applicant said that after [Mr B] died, his life was black. The applicant was staying in their apartment by himself and was terrified about what the future held. The applicant was unemployed and had to sell his [possessions] in order to pay the rent. The applicant returned to convince his parents that he had gone through a phase but it was over and he was not like that. They were convinced after a lot of effort on his part. After a while, the applicant found a job with [Company 1].
Delegate’s decision
The delegate was not satisfied that the applicant was a reliable witness at interview and did not accept that he was homosexual or that he had experienced the harm and mistreatment claimed.
The delegate found it implausible that the applicant would have slept naked with his male partner in his family home, given his characterisation of his family as homophobic and intolerant of homosexuality.
The delegate found it implausible that the applicant would be able to escape from his family home if he had been attacked by [a very large number of] villagers and had sustained serious and life-threatening injuries.
The delegate found that the applicant failed to provide consistent testimony about the timing of this incident and that his claim that the assault occurred during [Occasion 1] in [a particular month in] 2008 was inconsistent with available evidence indicating that [Occasion 1 occurred at a different time in] 2008.
The delegate found that the applicant had provided inconsistent evidence about the length of his hospital stay.
The delegate found that the medical report purportedly issued by [Hospital 1] was not genuine, having regard to the fact that the date of the document was inconsistent with the timeframes provided by the applicant. The delegate also found the content of the document to be inconsistent with information that would usually be contained in a medical report produced by a hospital. Rather than providing information about the length of admission and treatment administered, the report contained speculation about scenarios that did not eventuate.
The delegate found it implausible that the applicant would have been in a position to return to work [a short time] after being released from hospital, in view of the injuries the applicant claimed to have sustained.
The delegate found the applicant’s claim to have returned to his village in 2009 to convince his parents that he had changed was implausible. The delegate found it implausible that the applicant remained in his village for the next five years if he had received death threats, beatings, humiliation, degradation, insults, cursing, spitting and attempts on his life during this period.

The delegate found that the applicant was unable to adequately account for why he had previously told the Department that his fiancée was his high school sweetheart. The delegate found it implausible that if the applicant’s brother and sister-in-law in Australia knew he was homosexual and were helping him leave Egypt, they would send him [a wedding gift].
The delegate rejected the applicant’s claim to have had his first same-sex encounter in 1999 when he was just about to turn [a particular age]. The delegate found that the applicant did not turn [that particular age] until [2000]. The delegate found the applicant’s claims to have been arrested in a raid by the morality police at [Location 1] to be contrived and found that the claims relating to harm and mistreatment in 1999 were fabricated.
The delegate found that the applicant had contradicted his written statement at interview by stating that he discovered that same-sex relationships were denounced in the Koran at [a particular age]. In contrast, the applicant’s written statement indicated that despite being sexually attracted to men from [a particular age], he did not understand what he was feeling because he did not know anything about homosexuality until after he had left school.
The delegate found that the application was unsupported by independent evidence despite the applicant claiming to have openly discussed his sexuality with a work colleague in Australia.
Review application
At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record.
The Tribunal received lengthy written submissions from the applicant’s representative on 22 February 2017. The applicant’s representative acknowledged the discrepancies in the applicant’s previous descriptions of his homosexual encounter in 2008, as described in the decision record, but submitted that this traumatic incident combined with the forced suppression of the applicant’s sexual orientation and identity, may have produced the inconsistencies. The representative further acknowledged the inconsistency between the applicant’s evidence and the letter accompanying his [temporary] visa application but stated that the applicant became engaged as a way to prove to his family and his community that he was no longer homosexual.
Annexed to the submission were intimate photographs of the applicant with a person described as his male lover. The applicant claimed that the photos were taken by himself during a casual encounter [in] 2016. The applicant had reported that his lover had left Australia and was not contactable. The submission stated that the photographs had been provided as there was no objective medical or psychological test for determining a person’s sexual orientation.
The submission claimed that the applicant had confided in his sister-in-law about his personal and romantic life in Australia and that she would provide evidence about the applicant’s forced engagement, the wedding invitations and the circumstances surrounding the applicant’s planned wedding. According to the submission, the applicant’s sister-in-law recorded a telephone call in September 2016 in which the applicant’s father, mother and brother threatened to kill the applicant if he returned to Egypt because of the shame he had caused their family. A translated transcript of the call was provided.
The submission referred to and annexed multiple items of country information regarding the treatment of homosexuals in Egypt and elsewhere.
The transcript of the phone call provided to the Tribunal consists of two pages of cursing and threats directed towards the applicant purportedly from a man, a woman and a second man.
The applicant was initially invited to appear before the Tribunal to present evidence and arguments on 27 February 2017. The interpreter who had been engaged to assist with the hearing was unsuitable and the hearing had to be postponed until 10 March 2017.
At the rescheduled hearing on 10 March 2017, the applicant indicated that he was again unwilling to proceed with the interpreter who had been engaged to assist. Although the interpreter was male, as requested by the applicant, he was Lebanese not Egyptian and the applicant indicated that he had difficulty understanding the interpreter’s accent. The applicant submitted an electronic recording of the telephone calls which were the subject of the transcript submitted prior to the hearing. The hearing was then adjourned to 16 March 2017.
Tribunal hearing – 16 March 2017
At the Tribunal hearing on 16 March 2017, the applicant gave a detailed account of his experiences in Egypt that was for the most part consistent, both in content and structure, with the written evidence he presented to the Department.
The Tribunal noted that one of the reasons the applicant had wished to come to Australia was because of the relative freedom and asked the applicant whether he had engaged in any homosexual relationships whilst in Australia. The applicant told the Tribunal that his first relationship was with a [man] that he met at [a particular location]. The applicant told the Tribunal that he had seen the man at [location] a few times and they began talking together. Eventually they had [sex] in [a particular Australian suburb]. The applicant confirmed that this man was the other male depicted in the photographs submitted to the Tribunal. The Tribunal asked the applicant why he had taken the photographs. The applicant responded that he had asked the man if he could take the photographs for the memories and to have something to remember him by. The man had agreed.
The applicant told the Tribunal that he had several other casual relationships with men named [names removed] whom he met at [a particular location] in [a suburb in Australia]. The Tribunal noted that the applicant had mentioned in his evidence to the Department that he had another relationship with a man from Egypt. The applicant told the Tribunal that he did not have a sexual relationship with this person, they just worked together. The applicant had met this person whilst [working].
The Tribunal asked the applicant whether he had disclosed his sexual identity to anyone else in Australia. The applicant stated that he wouldn’t just walk down the street telling people he was homosexual. The applicant did state that he went to venues where he could meet homosexuals. The Tribunal asked the applicant whether he had made any friends in Australia who knew about his sexuality. The applicant said he had not developed any close relationships in Australia like the one he had with [Mr B]. The Tribunal asked the applicant whether he had made any connections within the gay community or made friends at the venues he attended who might be available to give evidence to the Tribunal. The applicant said he had not. The applicant told Tribunal that he was new in the country and had not had the opportunity to have deep conversations with anyone and was still uncertain about the situation in Australia. The Tribunal asked the applicant whether he had told anyone at his work about his sexual identity. The applicant said he had not. The applicant told the Tribunal that he went to gay venues by himself and simply put the venues in GPS in order to find them. The applicant said he had engaged in casual sexual relationships in order to fulfil his desires but he still hadn’t found a person that he loved and trusted.
The Tribunal asked the applicant about the recorded telephone call from his family in Egypt which he had submitted at the previous hearing. The applicant told the Tribunal that his sister-in-law had been speaking to the family and that she had made the recording. The applicant stated that he did not know how the call came to be recorded. The Tribunal put to the applicant that if the applicant had contrived his claims it would be a relatively simple matter to arrange for family members to say the things they did on the recording in order to create evidence to support his application. The Tribunal noted that no evidence of the context in which the call was received was before the Tribunal including the beginning or end of the phone call. The applicant told the Tribunal that the call was not contrived. The applicant said his sister-in-law had been talking to his family in a normal way but his family were angry with him and wanted to kill him.
The Tribunal put to the applicant that it was concerned about his evidence that he had been conducting internet searches for homosexual websites at a public internet café in Egypt. The Tribunal put to the applicant that this seemed to be very risky behaviour. The applicant responded saying that he had conducted the searches in extreme privacy. The applicant said he only went to the cafe very late when there weren’t many people around. Asked what precautions he had taken in order to ensure his privacy, the applicant stated that the internet cafe was a large room with [a number of] computers. The applicant used to take a computer in the far corner and if he saw anyone approaching he would exit the page straight away.
The Tribunal put to the applicant that it seemed unusual that in 1999, when the internet was relatively new, and in the context of the taboo around homosexuality in Egypt, there would be a website for homosexuals where he was able to obtain a telephone number for [Mr A]. The applicant told the Tribunal that the page he accessed contained photographs and at the end of the page there were telephone numbers. [Mr A]’s number caught the applicant’s eye and he gave him a call. The applicant then said the page was intended for westerners but he noticed that there was an Egyptian number in Cairo. The applicant was happy because Cairo was quite far away. The Tribunal put to the applicant that it seemed very risky for [Mr A] to place his photograph and phone number on a website for homosexuals. The applicant stated that he had used a fake name as he was also worried that the morality police would target him and he didn’t want to be identified. The applicant told the Tribunal that [Mr A] only agreed to meet him after he swore that he wasn’t the police and said he just wanted information about his feelings.
The Tribunal noted that the applicant’s evidence indicated that he had been arrested by the morality police in 1999, and his identification was checked in the course of that arrest. In those circumstances, the Tribunal asked the applicant how it was that he was accepted into the police academy less than a year after his arrest. The applicant told the Tribunal that although he had been arrested previously he had not yet had sexual intercourse. In the course of the screening, the police checked the applicant’s genitals to ascertain whether he had had homosexual intercourse. The applicant was able to pass that examination. At the time of his arrest, [details removed].
The Tribunal also put to the applicant that it was having difficulty understanding why the applicant wished to join the police force given the brutal treatment he had recently received. The applicant told the Tribunal that he wanted to change things but only later he realised that society was bigger than him. The applicant told the Tribunal that despite the harsh training, he enjoyed his life in the police academy, particularly because he was around men and they used to shower together. The applicant said he found the showers very pleasant.
The Tribunal asked the applicant about the incident in 2008 where he had taken [Mr B] to his home town. The Tribunal noted that the applicant’s evidence to the Department had been that he had taken [Mr B] to his home around the time of [Occasion 1]. In contrast, the applicant had given oral evidence to the Tribunal earlier in the hearing that he had returned to his home village for [Occasion 2] on [a particular date in] 2008. The applicant told the Tribunal that the Departmental interviewer had put him under a lot of pressure. This was the first time he had been questioned about his sexual orientation and he had been under enormous pressure. The Tribunal noted that the applicant’s written statement also suggested that [Mr B] had died around the time of [Occasion 1] and presumably the applicant had not been under the same pressure when preparing his written statement.
The Tribunal asked the applicant about the letter from [Hospital 1]. The Tribunal noted that the letter was dated in [a particular time in] 2008, which was [a number of] months after the applicant claimed to have been admitted to the hospital. The applicant claimed that this was an administrative error by the staff who wrote the letter on behalf of the doctor. The applicant claimed that he had called the doctor about it a year earlier and he had checked his records and issued a new letter with an amended date. The Tribunal noted that the new letter had not been submitted as evidence and indicated that it would be willing to receive that evidence after the Tribunal hearing.
The Tribunal noted that the applicant had told the Tribunal earlier in the hearing that the doctor had been required to prepare the letter for the police. The applicant had been able to convince the doctor to hand him the letter after telling him he was a police officer himself. The Tribunal noted that the letter did not appear to have been prepared for the purposes of a police report. The Tribunal noted that the letter did not contain any information about the date of the applicant’s admission or the duration of his admission. The letter contained no information about the cause of the applicant’s injuries but rather described the injuries and speculated about what could have happened if the applicant had not received treatment. The applicant responded that whenever there was a case in the emergency department doctors had to prepare a report for the police. The applicant said he had showed the doctor his ID card and police card and the doctor believed what he said. The applicant repeated that the date was an administrative error and suggested that the Tribunal could call the doctor to confirm the information contained in the letter. The Tribunal noted that the applicant’s admission to the hospital had been some nine years earlier. The applicant said he had spoken to the doctor as recently as last year.
The Tribunal put to the applicant that it had difficulty understanding why, after having been tortured and treated horrifically by his family in 1999, he had slept naked with his partner in his family home in 2008. The applicant responded that his family did not suspect that he was still a homosexual because a sheikh had assured them that he had been able to get the demon out of him. The family had no suspicions and the applicant had just told them that this was his work colleague. The applicant said he had not intended to have sexual intercourse with [Mr B] but it was out of their control. They loved each other in a very unusual way and did not trust anyone else.
The Tribunal also explained to the applicant that it was having difficulty understanding how the applicant and [Mr B] had been able to escape from his home given the number of people trying to harm him with weapons and given the injuries he claimed to have sustained. The applicant told the Tribunal that he had a powerful love for [Mr B] and didn’t want him to be killed in his home. The applicant was physically strong and defended [Mr B] in a crazy way because he loved him so much. When the applicant saw that [Mr B] had been able to escape and was calling to him to get out, the applicant found the strength and power to push the people around him aside in order to be with the person that he loved.
The Tribunal noted that [Occasion 2] took place on [a particular day in 2008] and the applicant had given evidence that [Mr B] had been killed at work [at a different time in] 2008. The applicant’s evidence had been that both he and [Mr B] had been at work that day. The Tribunal asked the applicant how it was that he was able to return to work so soon after [sustaining the serious] injuries described in the doctor’s report. The applicant told the Tribunal that he returned to work notwithstanding the injuries he had sustained. The applicant took the doctor’s report to the police doctors who asked if he wished to take a few days of rest. The applicant responded that he wished to go to work and they agreed that he could.
The applicant told the Tribunal that after [Mr B] was killed it was not possible for him to stay in Egypt. The applicant said he felt his family would come and find him at work and kill him and he stopped going to work on a regular basis. The Tribunal asked the applicant why, in those circumstances, he decided to return to live with his family only [a number of] months later. The applicant told the Tribunal that after [Mr B]’s death he felt hopeless and felt he had no other options. The applicant tried to convince his family that he had repented and after a long discussion they asked him to say a prayer of repentance that what he was wrong and that he would not do it anymore. The applicant managed to convince his family and those around him by fabricating a big lie.
The Tribunal noted that the picture of the applicant’s life depicted in his [temporary] visa application was quite different to that presented in his protection visa application. The Tribunal noted, for example, that the applicant had given evidence in his [temporary] visa application that he was well regarded within his community and had been chosen to [undertake particular religious activities]. The applicant described his family as close-knit and said he had a close relationship with his parents who were dependent upon him. The applicant had also described his fiancée as his high school sweetheart and said he could not wait to marry her. The Tribunal asked the applicant whether the information given in his [temporary] visa application was true. The applicant said the information in the [temporary] visa application was true and that he had fabricated a lie and made everyone in the area believe it. The applicant said he was a human and wanted to help [with particular religious activities]. The applicant said he was [details of religious activities removed]. The applicant said he wanted to be seen as normal even though he was living in a hell. The applicant said he wanted those around him to believe that he was not like he used to be. The Tribunal asked the applicant why he had said in his [temporary] visa application that his fiancée was his high school sweetheart and that he couldn’t wait to marry her. The applicant told the Tribunal that he had to say this in order to escape from his hell. The applicant told the Tribunal that members of the Muslim Brotherhood were threatening him because he was homosexual. The applicant was unable to live the way he was created and did not want to live in a society that monitored him.
The Tribunal asked the applicant why the Muslim Brotherhood were threatening him if he had managed to convince everyone else around him that he was no longer homosexual. The applicant told the Tribunal that when he returned to his village after [Mr B] was killed some people didn’t believe him and refused to talk to him and his family. Some people told the applicant’s family that they did not want to talk to such a dirty person and that his family should not let him stay in their home. For this reason, the applicant started working for [Company 1] in Cairo. The applicant spent [a number of] days of the week in Cairo and only returned to his village [for the remainder]. The applicant said he wanted to convince people that he was a good, normal person but really he needed time to think about what he could do to escape.
The applicant gave evidence that he had attempted to travel to [Country 2] but had been detained in [another country] and returned to Egypt. The applicant also gave evidence that he had travelled to [Country 1] and told the Tribunal about his attempts find protection in [Country 1].

The applicant told the Tribunal that there was no other reason why he did not wish to return to Egypt aside from his homosexuality. The applicant told Tribunal that in Egypt he was considered a criminal who does not deserve to live.
As the Tribunal was unable to take oral evidence from the applicant’s sister-in-law within the time allocated for hearing, the hearing was adjourned to another day.
Resumed hearing – 31 March 2017
The applicant and his sister-in-law, [Ms C], appeared before the Tribunal for a resumed hearing on 31 March 2017. At the commencement of the hearing, the applicant submitted a translated letter from [a doctor], dated [in] July 2016. The letter states that the author works in [Hospital 1] in the department of emergency and reception. The author said he received the applicant’s case in the hospital and repeated the information set out in his earlier letter. The letter states that the earlier letter contained a wrong date due to oversight on the part of the employee who wrote it. The correct date should be [a particular date in] 2008.
[Ms C] gave evidence that she became engaged to the applicant’s brother in [2007] and was married to him in [2008]. [Ms C] first met the applicant in person whilst visiting Egypt in 2012 with her husband and children. [Ms C] said that it was during this trip that she learned about the applicant’s homosexuality.
[Ms C] told the Tribunal that she would have long conversations with the applicant and became close to him. [Ms C] said she had noticed that the applicant’s relationships with other members of his family appeared distant. There appeared to be tension, they did not speak to him and he was always alone and isolated. [Ms C] said that it was during this period that the applicant confided in her and said that he wished to leave Egypt. [Ms C] told the Tribunal that the applicant had told her all about his 1999 arrest and the treatment he received at the hands of his family subsequently. The applicant also told her about the attack on him and his partner in 2008.
[Ms C] gave evidence that she did not immediately reveal this information to her husband and that he only became aware of the applicant’s sexuality when he talked with the applicant directly in around 2014. At first, [Ms C]’s husband was reluctant to assist the applicant and did not want to bring him to Australia. [Ms C] pressured her husband and told him that it was not right that the applicant should have to live in Egypt. Eventually he agreed and they assisted the applicant to make the [temporary] visa application.
The Tribunal invited [Ms C] to comment on the Tribunal’s observation that the depiction of the applicant’s life in Egypt in the [temporary] visa application appeared to be inconsistent with the claims made in the protection visa application. [Ms C] told the Tribunal that the only way the applicant could convince his parents that he was normal was to get engaged and this was what most homosexual males in Egypt did. [Ms C] said she knew that the applicant did not intend to get married.
[Ms C] told the Tribunal that she knew deep down that the applicant was gay and had experienced discrimination herself for something she was unable to change so felt she understood the applicant. [Ms C] told the Tribunal that it broke the applicant’s heart that his family could not accept him for who he is. [Ms C] told the Tribunal that as an Egyptian male, the applicant would not claim to be homosexual if it were not true. Islamic law forbids homosexuality and being a thief would be more acceptable than being gay.
[Ms C] told the Tribunal that the applicant’s situation had put a massive strain on her marriage. Her own parents and her husband want the applicant to leave her house. [Ms C] said she had [a number of] sons and her family thought that homosexuality could be caught. [Ms C] said that she realised that this was something within the applicant that he could not change and she was not willing to abandon him. [Ms C] said she was the only person who could speak for the applicant.
The Tribunal asked [Ms C] if she was aware of the applicant exploring his sexuality since his arrival in Australia. [Ms C] told the Tribunal that the applicant had been much happier and was able to go out and get to know other men without having to hide his homosexuality. [Ms C] said the applicant had told her about a few of his sexual encounters and she was aware that he often went to [certain venues]. [Ms C] said she could see how happy and excited the applicant was when he has met someone new.
The Tribunal asked [Ms C] what she thought the applicant’s situation would be if forced to return to Egypt. [Ms C] said that she had no doubt the applicant would be killed. Asked what made her belief this, [Ms C] told the Tribunal that she knew how his parents feel from conversation she has had with them. [Ms C] told the Tribunal that homosexuality is not accepted in Egypt morally or socially and ‘debauchery’ was introduced to round up homosexuals and get rid of them.
The Tribunal noted that the applicant had claimed that [Ms C] had recorded the telephone conversation with the applicant’s family in Egypt which was submitted as evidence to the Tribunal. [Ms C] agreed and stated that she continued to have a relationship with the applicant’s parents because of her children. [Ms C] stated that her children were speaking with the applicant’s parents over the telephone. When they finish talking, the applicant’s father asked to speak to [Ms C]. [Ms C] took the call and was blasted with abuse about the applicant. [Ms C] decided she should record the call and so, having put the phone on speaker, pressed record on her phone. [Ms C] told the Tribunal that she had had several conversations of this nature with the applicant’s parents. Whenever she speaks to them they talk about the applicant over and over again.
Asked if there was anything further she wished the Tribunal to take into account, [Ms C] told the Tribunal that she previously worked [in a particular occupation] and understood the importance of providing truthful evidence. [Ms C] told the Tribunal that she was 110% sure that the applicant was homosexual. [Ms C] told the Tribunal that she would not put herself and her family in this situation if she did not believe the applicant. [Ms C] told the Tribunal that the applicant could have made other claims but had applied for the visa based on his sexuality.
The Tribunal asked the applicant whether he had anything further he wished the Tribunal to consider after hearing his sister-in-law’s evidence. The applicant told the Tribunal that he wished to remain in Australia because he could not go back to Egypt. The applicant told the Tribunal that he would be killed or be forced to kill himself if forced to go back. Following a prompt from his representative, the applicant also told the Tribunal that he now thought that the person, [Mr A], whom he had met at the [Location 1] in 1999, might have been an undercover police agent. [Mr A] had warned the applicant about the morality police and it seemed suspicious that only [a short time] later the police arrived. [Mr A] was the only person there who was not captured. The applicant asked the Tribunal to look at his circumstances in a humanitarian way. The applicant said he felt as though he was living as a human being since his arrival in Australia whereas he did not feel this way before.
The applicant’s representative made oral submissions at the conclusion of the hearing. The representative told the Tribunal that the applicant’s case had caused a lot of stress within his family. The representative observed that homosexuality was an innate part of a person’s being with no physical manifestations and so it was difficult for decision-makers to assess whether someone is in fact homosexual. The representative submitted that for most Egyptians homosexuality is seen as a choice which is amongst the lowest, most disgusting moral choices a person can make. This was evidenced by the treatment of homosexuality as a crime by the Egyptian authorities. In Egyptian families, homosexuality is viewed as a cancer that must be cut out and removed and is the subject of intense stigma and shame. The representative submitted that physical and mental torture was inflicted upon those suspected of being homosexual in Egypt.
The representative submitted that the applicant had a well-founded fear of persecution for a Convention reason and could not avoid persecution by relocation. The representative further submitted that the applicant had made out a clear case for complementary protection. It was submitted that the applicant had offered honest, open and detailed testimony and given a specific description of how he came to terms with his homosexuality.
Post-hearing correspondence
On 19 April 2017, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment on or respond to particulars of information arising from his 2014 [temporary] visa application in relation to his engagement, his friendships and his relationship with his family.
On 2 May 2017, the applicant provided a response to the Tribunal’s s.424A letter. In his response the applicant stated that he had to say that he was engaged to be married so he could escape from his situation. His fiancée was a distant relative and they did not go to school together. His family insisted that he should get married and gave him an ‘ultimatum’. They wanted to prove to the community that he was ‘normal’. They chose his fiancée because she did not live in the same province and her family did not know about his situation. He was forced and he had no choice in the matter. He is gay and has no interest in females.
With regard to his friendships, he stated that, in 2014, [a number] of his childhood friends ‘came back’ to him after they saw him going to the mosque to [undertake religious and charitable activities]. He had been chosen by the Imam as he was the one who recited the prayer of repentance with him and he wanted to show the community that the applicant had returned to ‘the way of god’. The applicant took the opportunity to show people that he had changed in order ‘to deceive the people into thinking that [he] was no longer homosexual’. After [Mr B]’s death his childhood friends left him when they found out about his homosexuality. His parents and family had disowned him and he had no friends. He was an ‘outcast’ in his community. He was subjected to death threats, muggings, beatings humiliation, degradation, insults, cursing, spitting and attempts on his life for five years until he could find a way out.
With regard to his family, he responded that his family are close-knit but they are not close to him. His family were attached to him because in 2014 they had arranged his marriage and they saw him going to the mosque. They thought he was no longer homosexual. He was following their ‘orders’ until he could find a way out. He was helping his parents financially as he was making good money and he wanted to prove that there were ‘no hard feelings’. He wanted to give everyone the impression that he was not homosexual. His family have disowned him and they want to harm him because they consider him to have dishonoured them by refusing to marry his fiancée. The applicant stated that the recorded telephone call from his family supports his claims.
On 7 August 2017, the Tribunal wrote to the applicant to inform him that the Member his case was initially allocated to was no longer available and that a different Tribunal Member would complete the review.
Findings and reasons
The Tribunal accepts on the basis of the country information available to the Tribunal from the applicant and other sources that homosexual men face a real chance of persecution in Egypt.
There are, however, a number of features in the applicant’s evidence which, when considered cumulatively, leave the Tribunal unsatisfied that the applicant’s claims to be a homosexual man and to have experienced harm in Egypt are true.
The applicant’s claims regarding the manner in which he made contact with [Mr A] in 1999 are problematic. The applicant has been able to provide only vague evidence regarding the nature of the website on which he obtained [Mr A]’s telephone number. The applicant has described it as a website for homosexuals that contained photographs and a list of phone numbers. At hearing, the applicant suggested that it was a website intended for westerners but said [Mr A]’s number caught his eye as it was a Cairo phone number. As suggested to the applicant at hearing, the Tribunal finds it difficult to believe that in 1999, at a time when the internet was relatively new, and in view of the manner in which homosexuals were treated in Egypt, that a homosexual Egyptian man would publish his photograph and telephone number on a public website. The applicant’s response to this concern at the first hearing was that [Mr A] had used a fake name as he was worried about the morality police targeting him and did not want to be identified. The applicant said [Mr A] only agreed to meet the applicant after he swore he wasn’t the police. In the Tribunal’s mind this still does not explain why [Mr A] was prepared to post his photograph and correct phone number. A quite different explanation was provided at the second Tribunal hearing, when the applicant suggested that [Mr A] may have been a member of the morality police posing undercover as a homosexual man. This theory was not suggested at the first hearing or in the applicant’s written evidence and the Tribunal has difficulty reconciling the two explanations. Whilst the latter appears more plausible, it seems unusual to the Tribunal that the applicant did not mention his suspicions at the earlier points in time.
The Tribunal also continues to have some difficulty accepting as credible the applicant’s claim to have been searching for such websites in a public internet café. In response to the Tribunal’s concern, the applicant claimed that he conducted his searches in extreme privacy and turned off the screen if someone approached, yet his evidence still indicated that he was conducting searches in a room containing [a number of] other computers. Given that the applicant has suggested that he was aware that homosexuality was denounced in the Koran, the Tribunal finds the applicant’s claimed conduct to have been extremely risky.
The Tribunal has considerable difficulty reconciling the applicant’s decision to join the police academy with his evidence as to his arrest and the brutal treatment he received at the hands of the morality police just [a number of] months earlier. Having just been beaten and treated in a cruel and degrading way by the morality police on suspicion of being homosexual, it seems implausible to the Tribunal that the applicant would seek to join those who had treated him in this way. The applicant’s explanation, that he thought he could change things from the inside, is unconvincing.
It is also surprising to the Tribunal that the applicant’s earlier arrest would not have come to light when he applied to join the police. Although the applicant has suggested that [no record] of his arrest was kept, the applicant’s evidence also indicated that [his identification] was checked. Given the Egyptian authorities’ attitude towards homosexuals, the Tribunal finds it surprising that no record of the arrest would have been kept or discovered at the time the applicant applied to join the police.
The applicant has provided contradictory evidence in relation to the timing of the 2008 incident in which he and [Mr B] were attacked. In his written statement, the applicant claimed that in 2008, he and [Mr B] made the trip to the applicant’s hometown for [Occasion 1]. The applicant claimed that after he was attacked, he was admitted to [Hospital 1] where he was [treated] for [a period of time]. The applicant said he was discharged on [a particular date in] 2008. The applicant returned to work and [Mr B] was killed [shortly after].
The applicant submitted a letter to the Department from [Hospital 1] which was dated [in] 2008. At the Departmental interview, the applicant said he obtained the letter from the hospital when he was discharged.
At the Departmental interview, the applicant repeated his claim that he had returned to his family home [for Occasion 1]. The applicant could not initially recall what month this was but suggested it may have been in [certain months in] 2008. The applicant also suggested that he was hospitalised for [a shorter duration than previously claimed].
In contrast, at the Tribunal hearing, the applicant claimed that he had returned to his home town for [Occasion 2] on [a date in] 2008. The applicant also provided a new letter from [Hospital 1] indicating that there was a typographical error in the earlier letter and that it should have been dated [on the day of his discharge in] 2008.
When the Tribunal put to the applicant that he had provided contradictory evidence with regard to [the particular occasion] for which he had returned to his hometown, the applicant claimed that he had been placed under a lot of pressure by the officer conducting the Departmental interview. In the Tribunal’s assessment, this potentially accounts for the applicant’s inability to recall the month in which the incident occurred and possibly the length of his hospital stay but it does not adequately account for why the applicant also claimed in his written statement that he had returned to his hometown for [Occasion 1]. The general information available to the Tribunal indicates that [Occasion 1] took place [in a particular month] in 2008, which is different to any of the other dates suggested by the evidence.
Whilst the evidence that has now been provided to the Tribunal regarding the [occasion] and the timing of the applicant’s hospitalisation now aligns and is corroborated by the revised letter from [Hospital 1], the Tribunal remains troubled by the earlier inconsistencies.
There are a number of other matters that raise questions in the Tribunal’s mind as to the credibility of the applicant’s evidence surrounding this incident. The letters from [Hospital 1] are unusual in several respects. The applicant told the Tribunal that the original letter had been prepared for the police and that the hospital had been required to prepare such letters for every case that came into the emergency department. As put to the applicant at hearing, the letter does not appear to have been prepared for this purpose given that it contains no information about the date of the applicant’s admission or the duration of his admission. The letter contains no meaningful information about the context in which the applicant’s injuries were said to have occurred. The letter is also unusual in that it contains speculation about what could have happened if the applicant had not received treatment. Given that the incident occurred in 2008, the Tribunal also finds it somewhat unusual that in 2016 the applicant was able to contact the doctor that treated him in the emergency department and that the doctor either recalled, or had retained for more than eight years records relating to, the applicant’s treatment and admission.
The Tribunal has some difficulty understanding how the applicant was capable of returning to work [so soon in] 2008 after suffering life-threatening injuries so severe he had to [undergo intensive treatment] for [a period of time] after being attacked [a short time before in] 2008. The applicant’s explanation, that he wished to go back to work and had been allowed to do so by the police doctors, was unpersuasive.
The applicant’s description of the attack itself appears highly improbable. The applicant has claimed that [a very large number of] people entered his home and beat him and [Mr B] with [objects and weapons] as well as their hands and feet. The applicant sustained multiple [serious wounds] to [areas of his body] and a severe injury to [another area of his body]. The applicant’s injuries led to [a serious medical condition] and he had to be [intensively treated]. Yet somehow the applicant was able to escape. Whilst the Tribunal accepts that the applicant is tall and appears to be physically strong, the Tribunal finds his claim to have been able to push his attackers aside because of his love for [Mr B] unconvincing.

That the applicant took [Mr B] to his family home and slept naked with him there until morning is in itself problematic given the evidence of the applicant’s family’s treatment of him in 1999. According to his evidence, the applicant’s family had told him that he would need to be killed if he was homosexual. After his arrest, the applicant’s father and brother [beat] him, denied him food, and forced him to sleep [outside] and drink the animals’ water. In this context, it seems implausible that the applicant and [Mr B] would be so careless as to have sexual intercourse in the applicant’s family home and then remain naked in bed together until they were discovered by the applicant’s mother in the morning.
The applicant’s decision to return to his family home [a number of] months after the attack on him and [Mr B] is also extremely difficult to fathom. The applicant’s evidence suggests that [Mr B] was deliberately killed because of what they had done. The applicant also told the Tribunal at hearing that he feared his family would come and find him at work and kill him. In this context, and given that he had lived independently of his family for some eight years in Cairo, the Tribunal has considerable difficulty accepting that the applicant would feel that he had no option but to return to his family after [Mr B]’s death.
The applicant’s depiction of his personal and family life in his protection visa application is contradicted by the evidence presented in his 2014 [temporary] visa application. In the earlier application, the applicant said he was engaged to be married and described his fiancée as his high school sweetheart. The applicant said he could not wait to marry her. The applicant said he had close childhood friends, was very well respected by his community and had been chosen by a local Imam to [undertake a particular religious activity]. The applicant said he had been awarded a certificate of achievement in recognition of his [religious activities]. A certificate of appreciation from [a mosque] was submitted with the application. The applicant said he had strong family ties and described his family as close- knit. The applicant said his family were ‘extremely attached’ to him and his parents were financially dependent upon him. The information in the applicant’s [temporary] visa application was put to him under s.424A of the Act and the Tribunal has considered the applicant’s response.
The Tribunal accepts that persons trying to escape persecution could feel compelled to make misleading statements in order to secure a visa enabling them to escape. The applicant has, however, told the Department and the Tribunal that both sets of claims were true. The applicant has said that he fabricated a lie in order to make his family and members of his community believe that he was a ’normal’ person. The Tribunal accepts that this explanation accounts for why the applicant had a fiancée. The Tribunal is not satisfied, however, the applicant has adequately accounted for why, in his [temporary] visa application, he described his fiancée as his high school sweetheart; why he said he could not wait to marry her; why he said he had close family relationships and friendships; and why he said he was well respected in his community. The Tribunal also finds the applicant’s explanations in his response to the Tribunal's s.424A letter problematic. For example, whilst the applicant states on the one hand that [a number of] of his childhood friends ‘came back’ to him in 2014, he also claims that, in the five years before he came to Australia, his childhood friends left him and he had no friends. He also stated that his family were not close to him, but they were attached to him because, in 2014, they had arranged his marriage and saw him attend the mosque. The Tribunal considers these conflicting responses to be unpersuasive attempts at reconciling the statements he made in his [temporary] visa application with his claims in connection with his application for a protection visa.
The applicant’s evidence to the Tribunal was that in the years prior to his departure from Egypt, members of the Muslim Brotherhood were threatening him, and members of his village refused to talk to him and regarded him as a dirty person. The applicant felt compelled to stay at his work for the majority of the week. In his written statement, the applicant said he had no friends and was outcast amongst his community. The applicant said that in the five years before his departure from Egypt he had received death threats, muggings, beatings, humiliation, degradation, insults, cursing, spitting and attempts on his life. The applicant said his parents and family had disowned him, hated who he was and did not want anything to do with him.
Although the applicant did later say in the hearing and in his response to the Tribunal's s.424A letter that he had made the claims he did in his [temporary] visa application in order to escape a living hell, his earlier insistence that the claims were true and the fundamental contradictions between the two applications casts doubt over his credibility generally.
The Tribunal is also troubled by the absence of witness evidence from persons outside the applicant’s family. The applicant’s evidence indicated that one of the reasons he wished to come to Australia was because he would have relative freedom to be himself. The applicant had given evidence to the Department that he had talked about his sexuality with a former work colleague. The applicant told the Tribunal that he had explored his sexuality in Australia and had several casual sexual encounters with Australian men as well as men from overseas. The applicant also told the Tribunal that he had attended gay venues. However, he also gave evidence that he has not formed any close relationships with other homosexual men in Australia and has gone to venues, such as [a particular venue], alone. Nonetheless, the applicant has been on notice that his sexuality was in doubt from the time of the delegate’s decision and does claim to have explored his sexuality in Australia. The applicant did not provide any additional information to the Tribunal after he was informed that a different Tribunal Member would complete the review. In the circumstances, the absence of any evidence of these activities from witnesses outside the applicant’s family is surprising.
The Tribunal has considered the photographs submitted to the Tribunal. The photographs alone do not prove that the applicant is homosexual. The photographs do not ultimately prove anything other than that the applicant photographed himself apparently engaging in intimate acts with another man. The applicant claimed that he wished to have a keepsake or memory of the other man. This explanation, however, is not particularly persuasive given that none of the photographs show the man’s entire face and he appears to be wearing a wig. Having regard to the Tribunal's concerns regarding the credibility of the applicant, the Tribunal is not satisfied that the applicant’s conduct in Australia has been otherwise than for the sole purpose of strengthening his claim to be a refugee. Accordingly, in determining whether the applicant has a well-founded fear of being persecuted, the Tribunal will disregard this conduct pursuant to s.5J(6) of the Act.
The Tribunal has considered the supportive evidence of the applicant’s sister-in-law, [Ms C]. [Ms C]’s evidence, however, did not assist in resolving the problematic aspects of the applicant’s evidence identified in these reasons. The Tribunal has also considered the recording [Ms C] claims to have made of the applicant’s family in Egypt cursing and abusing the applicant over the telephone. As foreshadowed at the hearing, the weight the Tribunal is prepared to accord to this evidence is limited given that neither the beginning nor the end of the telephone conversation has been provided to the Tribunal. If indeed the applicant had fabricated his claims in order to obtain a permanent visa, it would be a relatively simple matter to arrange for members of his family to call and say the things they did for the purpose of contriving evidence.
As already indicated, the letters from [Hospital 1] are, in the context of the applicant’s own evidence, problematic. The Tribunal does, however, accept that the applicant appears to suffer from a condition affecting [a particular part of his body] which could be the result of an injury. The Tribunal is also prepared to accept that it is possible that the applicant suffered the other injuries referred to in the letters from [Hospital 1]. The recording of the Departmental interview, for example, indicates that the applicant showed the officer scars on [a particular part of his body]. The Tribunal is prepared to assume that if the Tribunal were to contact the doctor who authored the letters, as suggested by the applicant, he would provide evidence consistent with that set out in the letters. However, neither letter from [Hospital 1] provides evidence as to the context in which the injuries occurred. In all the circumstances, the Tribunal considers it appropriate to proceed on the basis that the applicant did indeed suffer the injuries set out in the letters and received treatment at the hospital. The Tribunal, however, is not satisfied that the applicant’s claims regarding the cause of the injuries or the context in which they occurred are true.
The applicant has also claimed that he tried to escape Egypt on other occasions and gave evidence at hearing about an unsuccessful attempt to travel to [Country 2] and attempts to enquire about the possibility of seeking protection in [Country 1]. The Tribunal accepts that the applicant travelled outside Egypt prior to his arrival in Australia and has given some weight to this evidence. The Tribunal has considered the applicant’s claimed reasons for the travel, but in view of the credibility concerns outlined above, notes that the travel could have been undertaken for a variety of other reasons, including to strengthen the applicant’s [temporary] visa application, for tourism, or to seek a better life generally.
The Tribunal is conscious of the fact that a significant period of time has passed since the events the applicant claims to have experienced in Egypt. The Tribunal also accepts that those events, if they occurred, would have been extremely traumatic and that the ongoing effects of such trauma could adversely affect the applicant’s ability to recall those events with precision. The Tribunal accepts that persons giving evidence to the Department and Tribunal in relation to a visa application often experience stress or nervousness that can affect their evidence. The Tribunal is also cognisant of the fact that the applicant has given evidence on multiple occasions using different interpreters.
The Tribunal has carefully considered all of the evidence and has made appropriate allowances for the reasons set out above. Having considered the evidence as a whole, the Tribunal finds the inconsistencies and the anomalies in the evidence are so numerous and pervasive that the Tribunal continues to have serious doubts about the truthfulness of the applicant’s claims.
The Tribunal, therefore, does not accept that any of the applicant’s claims of past harm in Egypt are true. In particular, the Tribunal does not accept that the applicant was arrested by morality police near [Location 1] in, or around, 1999. The Tribunal does not accept that the applicant was tortured or mistreated by the morality police or by members of his own family or subjected to an exorcism or other such ritual by a sheikh. The Tribunal does not accept that the applicant was in a long-term romantic relationship with a person named [Mr B] and slept naked in his bed with [Mr B] in his family home in, or around, 2008. The Tribunal does not accept that the applicant and [Mr B] were discovered by his mother and attacked by members of the applicant’s family or village. The Tribunal does not accept that the applicant was admitted to hospital in 2008 for the reasons claimed. The Tribunal does not accept that the applicant’s partner was killed because he was believed to be homosexual. The Tribunal does not accept that the applicant stayed predominantly at his workplace in the period before his departure for Australia owing to any mistreatment of him by his family or members of his community. The Tribunal does not accept that the applicant was threatened by the Muslim Brotherhood.
The Tribunal has considered whether, notwithstanding the Tribunal’s findings as to the applicant’s claims of past harm, it is satisfied that the applicant is homosexual. The Tribunal accepts the applicant’s representative’s submissions that homosexuality is an inherent trait and that there is no objective or scientific test the Tribunal can administer to determine whether the applicant’s claim to be a homosexual man is true. The Tribunal must, however, make a finding on the evidence that is before it.
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for'. However this should not lead to 'an uncritical acceptance of any and all allegations made by suppliants'. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997): 'Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another' (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282). The Full Court of the Federal Court (O'Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, that there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case.
For the reasons set out above, the Tribunal has formed an adverse view of the applicant’s credibility generally. The Tribunal has not accepted any of the applicant’s claims of past harm and does not accept on the evidence before it that the applicant’s claim to be homosexual is true.
As a consequence, the Tribunal finds that the applicant is not homosexual and will not engage in homosexual activities in Egypt. The Tribunal finds that the applicant is not and will not be perceived to be homosexual in Egypt. The Tribunal does not accept that there is a real chance that the applicant will suffer any harm for reasons of his sexuality or owing to any perception that he is homosexual, should he return to Egypt now or in the reasonably foreseeable future. For the same reasons, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm in Egypt. The applicant has not claimed to fear harm in Egypt on any other basis.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution and is not, therefore, satisfied that he is a refugee in accordance with s.5H of the Act. 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 applicant’s only claimed reasons for not wanting to return to Egypt are based on his sexual orientation. For the reasons outlined above, the Tribunal has rejected these claims. It has found that the applicant is not homosexual and will not engage in homosexual activities in Egypt. The Tribunal, however, has taken into account, for the purposes of s.36(2)(aa), the conduct engaged in by the applicant in Australia which it has disregarded under s.5J(6) of the Act. However, as discussed above, in the Tribunal’s view the sexual activity depicted in the photographs submitted by the applicant do not establish that he is gay or that he has engaged in homosexual relationships with anyone. Similarly, the Tribunal finds the fact that the applicant has attended gay venues in Australia does not establish that he is homosexual. The Tribunal is not satisfied that the activities he has engaged in in Australia have or will become known to anyone in Egypt. Having regard to the totality of the material before it, including the evidence relating to the conduct previously disregarded, the Tribunal finds that the applicant is not and will not be perceived to be homosexual, and will not engage in homosexual activities in Egypt.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that he will suffer significant harm. 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior 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.
…

[2018] AATA 569

26 February 2018

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