1511885 (Refugee)

[2017] AATA 1188

1511885 (Refugee) [2017] AATA 1188 (29 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511885

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Mila Foster

DATE:29 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2017 at 10:47am

CATCHWORDS
Refugee – Protection visa – Egypt – Relative’s involvement with Muslim Brotherhood – Persecution of relatives – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 5H, 5J, 499
Migration Regulations 1994, Schedule 2

CASES

ALQ15 v MIBP [2015] FCA 1253
SZQEK v MIAC [2011] FMCA 628

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Egypt, applied for the visa [in] December 2014. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.  

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.  

6. 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). Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

   Mandatory considerations

7. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report on Egypt on 24 November 2015. That report was replaced by a more recent report produced on 19 May 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant’s claims and evidence were presented in his protection visa application, additional documents submitted to the Department in relation to his protection visa application, during an interview with the delegate held [in] April 2015, written information provided to the Tribunal including a copy of the delegate’s decision record, and oral evidence given at a Tribunal hearing held on 31 March 2017. I have had regard to that evidence in conducting my review although my decision does not contain a detailed account of all the evidence.

9. For reasons I give further below I have concluded on the evidence before me that the decision under review should be affirmed.

   Protection visa application

10. According to the applicant’s protection visa application he is a national of Egypt who arrived in Australia as a [temporary entrant] [in] August 2014. He had lived and worked in the [Country 1] from August 2008 until August 2014. His reasons for claiming protection was provided in a written statement. According to the statement:

    a.The applicant came to Australia on behalf of his employer in [Country 1] for work purposes. Once he arrived he advised his employer that he needed to remain in Australia for another month but was informed he should return immediately. He refused. [In] August 2014 his employer threatened to inform the Department of Immigration that the documents he had submitted were forged. 

    b.The applicant had escaped from Egypt because of problems between himself and a [Relative 1] who was affiliated to a political group. After he finished military service in 2008 his [Relative 1] asked him to join his [Relative 1]’s political party but he refused.

    c.The applicant cannot return to Egypt after the persecution faced by his [Relative 1] who had run away from Egypt. The investigation would extend to all his [Relative 1]’s family members and relatives including the applicant. The applicant feared being investigated and tortured due his [Relative 1]’s political affiliation if he returned to Egypt.

    d.The Egyptian government is unable and unwilling to protect him; many people are subjected to investigations ending in detention. The situation is deadly because of kidnappings, killings, and bombings. Hundreds of thousands of people are in gaol without reasons.

    Interview with delegate

11. I have listened to a recording of the interview the applicant had with the delegate. The delegate also provided an account of the interview in her decision record.

12. During the interview the applicant stated that [Relative 1] had been involved with the Muslim Brotherhood in Egypt. When the applicant was in Egypt in July 2014 he learned that his [Relative 1] had left Egypt and gone to [Country 3]. He subsequently indicated that [Relative 1]’s name was on a watch list at the airport from April 2014. The applicant said the police were always coming to look for his [Relative 1]; they detained his [Relative 1]’s father, [Mr B], for a few days, and tortured his [Relative 1]’s father and mother to get information about his [Relative 1]’s whereabouts. The applicant was afraid that would happen to him too because his family and his [Relative 1]’s family lived [close] to each other so he cut his visit short and returned to [Country 1].

    Additional information provided to the Department

13. In response to requests from the delegate for additional information[1], the applicant provided documents which included the following information and provide context to his claims:

    a.He visited Egypt from [July] 2014 until [August] 2014, returning to [Country 1] [in] August 2014.

    b.His widowed mother and [sibling] reside in Egypt; [some siblings] live in the [Country 1] and [another] resides in [another country].

    c.In September 2014, he decided to remain in Australia even though his employer had refused his request to extend his vacation and had threatened to terminate his employment if he did not return and to inform the Department that his documentation was false. He did not believe his employment was actually in jeopardy and he lodged a second [visa] application.

    d.In November 2014, after realising his employer’s threats were likely to occur he resigned.

    e.He married an Australian citizen in Australia [in] December 2014.[2] (He informed the Tribunal on review that he and his wife have [have children]).

    f.In April 2015 he lodged a waiver to enable him to apply for a Partner visa (which was refused).

    [1] See in particular Department file [number].

    [2] Tribunal file 1511885 at ff.128-129.

    Tribunal hearing

14. At the hearing the applicant confirmed that his family and his [Relative 1]’s family were [living close by] in Egypt, and that he feared harm if he returned to Egypt because of his [Relative 1]’s involvement with the Muslim Brotherhood. Specifically, he feared facing what his [Relative 1]’s father and [brother] had experienced, that is, being taken away by the police to the police station, detained, tortured and questioned about his [Relative 1]’s whereabouts. He also feared being arrested at the airport because he has the same surname as his [Relative 1] and his [Relative 1] is on a watch list.

15. I elaborate on the applicant’s testimony in my assessment of his credibility below.

    Credibility

16. The applicant’s testimony was unsatisfactory in a number of respects. At times it was vague, evasive, and inconsistent with his written claims. Furthermore, the applicant’s own conduct has not been consistent with his claimed fears.  The following are examples.

17. The applicant told the delegate at the interview and I confirmed with him at the beginning of the hearing that it was during his visit to Egypt in July 2014 that he found out that his [Relative 1] had gone to [Country 3]. Yet later when I referred to his [Relative 1] having left for [Country 3] at the time of his visit in July 2014, the applicant replied that nobody knew exactly where his [Relative 1] was, that his [Relative 1]’s brother in [Country 1] sometimes said he was in [one country] and sometimes that he was in [another country]. When I asked whether his [Relative 1] was in Egypt at the time of his 2014 visit, the applicant replied that he was not. When I sought to clarify that it was his understanding at that time that his [Relative 1] had left Egypt, the applicant replied he was not sure but his [Relative 1]’s brother had told him his [Relative 1] had left. Thus, the applicant’s testimony about what he came to know about his [Relative 1]’s whereabouts when he returned to Egypt in 2014 seemed to shift as he testified, became more vague and evasive.

18. When I asked the applicant about his [Relative 1]’s involvement with the Muslim Brotherhood he stated that his [Relative 1] mixed and joined the Muslim Brotherhood after returning from five years in [country]. He added that he did not have much detail. Asked whether he was aware if his [Relative 1] was a member or leader of the Muslim Brotherhood or what his [Relative 1] did with the Muslim Brotherhood, the applicant did not indicate whether his [Relative 1] was a member, leader or what he did with the Muslim Brotherhood. Instead the applicant stated that he left Egypt in 2008 after completing military service and then was overseas until 2014, and only caught up to socialise with his [Relative 1] when he returned to Egypt once a year. Thus, the applicant gave the impression that he was not aware of his [Relative 1]’s activities with the Muslim Brotherhood because he was not living in Egypt and had little contract with his [Relative 1]. However, the applicant subsequently stated that he knew his [Relative 1] was a member before adding that his [Relative 1] was an active member of the Muslim Brotherhood involved in charitable work and was always in the office. Thus, the applicant initially indicated he had virtually no knowledge of his [Relative 1]'s activities with the Muslim Brotherhood but then seemed to embellish his evidence claiming that his [Relative 1] was an active member involved in charity work who was always in the office.

19. Asked whether his [Relative 1] was involved in a political party associated with the Muslim Brotherhood, the applicant stated he was unsure. Asked whether his [Relative 1] had encouraged the applicant to join the Muslim Brotherhood or get involved in its activities, the applicant replied that his [Relative 1] did not. However, the applicant had claimed in his written statement that his [Relative 1] was involved with a political party which he had asked the applicant to join but the applicant refused. When I put this to the applicant, he did not suggest that his [Relative 1] was involved in any political party at all nor did he explain this apparent discrepancy between his oral and written evidence. Instead he merely stated that his [Relative 1] was involved in the charity or welfare wing of the Muslim Brotherhood not its political wing.

20. The applicant testified that he realised it was not safe for him to return to Egypt when the police took his [Relative 1]’s father, [Mr B], and [brother], [Mr C], away for investigation. Questioned further the applicant said this had happened before he returned to Egypt in July 2014, once while he was in Egypt during that visit and after that visit as well. He said [Mr C], who was [a teenager], was questioned no more than 7 times and [Mr B], who was over [age] years old, was questioned about 10 or more times. Asked what happened to [Mr B] and [Mr C] when they were taken by the police, the applicant replied that they were taken to the police station, questioned about his [Relative 1]’s whereabouts, and tortured. Asked whether any other family member was questioned or harmed by the authorities because of his [Relative 1], the applicant replied that they were not because most male family members were outside Egypt. Asked whether any female family members were targeted the applicant stated that [Mr B]'s wife was beaten on one occasion when the police came to get [Mr B] and she became argumentative. However, the only family members the applicant mentioned being questioned, detained or harmed by the police because of his [Relative 1] during his interview with the delegate were [Mr B] and [his wife]. He did not mention his [Relative 1]’s [brother], [Mr C], being detained, questioned and tortured. When I put this to the applicant at the hearing, he responded that he may have forgotten about [Mr C] or that the interview may not have gone to (deal with) [Mr C]. I do not accept that they applicant could forget that a [young] [Relative 1] was detained, questioned and tortured up to 7 times by the police. Nor do I accept that the applicant would mention his [Mr B] and [his wife] being harmed at the interview but not think to mention [Mr C]’s detention and torture.

21. In addition to the above flaws in the applicant’s testimony, his conduct is not consistent with his claims. Firstly, he testified that the police began questioning [Mr B] and [Mr C] in about 2011 and that his mother would inform him over the phone about what had happened to them. Yet the applicant, according to his testimony, returned to Egypt from the [Country 1] once a year since 2008. Asked why he returned given he was aware what happened to [Mr B] and [Mr C], the applicant replied that they were not killed or tortured to death so he did not take it seriously. Questioned further he said it was different to hear the news in [Country 1] over the phone to seeing it on the ground. I do not find it credible that the applicant would have had to hear that [Mr B] and younger [Relative 1] were dead or killed before he considered not returning to Egypt. He said [Mr B] was over [age] years old and his [Relative 1] was [age]. I do not accept that hearing that the police had subjected an older relative and younger relative to serious harm involving detention and torture would not discourage the applicant from returning to Egypt for visits.

22. Furthermore, the applicant’s conduct since his arrival in Australia indicates that he does not fear facing the same harm treatment as [Mr B] and [Mr C] if he returned to Egypt. The applicant presented his Egyptian passport to the Department and the Tribunal which contained a [Country 1] Residence Permit that remained valid until [May] 2017 as long as he did not reside outside [Country 1] for more than six months. The applicant testified that the [Country 1] Residence Permit was also dependent on the applicant having employment in [Country 1]. The applicant testified at the hearing that he resigned from his [Country 1] job in November 2014. I questioned why the applicant resigned knowing he would thus lose his temporary residence in [Country 1] and hence faced returning to Egypt where he claimed to fear the harm [Mr B] and [Mr C] had experienced. The applicant responded that it was necessary to apply for a job to obtain a residence permit in [Country 1] and to apply for a job it was necessary to apply for and be granted [temporary] visa. He said he not stay in Australia to seek protection; he came as a representative of his company and when the permitted period expired he requested an extension from his employer but was refused. He was told he would be reported to the Australian government and to return to [Country 1] or his residence would be cancelled. He thus resigned. The applicant’s evidence about the process of obtaining a [temporary] visa to apply for a job in [Country 1] and then apply for residence is not relevant as he had a valid [Country 1] Residence Permit based on his employment until May 2017. Further, his explanation that he resigned because his request to extend his visit to Australia is not credible because it does not explain why, if he genuinely believed that he faced detention and torture in Egypt, he placed extending his visit in Australia ahead of maintaining his employment which ensured that he had a right to return to [Country 1] and would not have to return to Egypt until at least May 2017.

23. For the above reasons I have concluded that the applicant and his claims about his [Relative 1] are not credible.

    Findings

    Country of reference

24. Based on the applicant’s Egyptian passport and in the absence of any evidence to the contrary, I find that he is a national of Egypt and that Egypt is thus the receiving country for the purpose of assessing his claims for protection.

    Claims about [Relative 1]

25. Given my finding that the applicant and his claims about his [Relative 1] are not credible, I do not accept that the applicant has a [Relative 1] who was involved with or perceived to be involved with the Muslim Brotherhood or any political party in any way. Nor do I accept that the applicant’s [Relative 1] asked the applicant to join a political party and that the applicant refused to join. I thus do not accept his [Relative 1] is on a watch list in Egypt and that the applicant could be arrested at the airport because he shares the same surname as his [Relative 1]. It follows that I do not accept that the [Relative 1]’s [family members] have been questioned, investigated, detained, beaten, tortured or otherwise harmed by the police or Egyptian authorities because of the applicant’s [Relative 1]. Nor do I accept that the applicant fears or faces being arrested, questioned, investigated, detained, tortured or harmed in any way by the Egyptian police or authorities because of his [Relative 1]. I find that these claims are not true.  

    The general situation in Egypt

1. I noted that the last claim in the applicant’s written statement seemed to concern the general security situation in Egypt and that there is information that incidents such as those he mentioned do occur due to the security situation in Egypt.[3]  I then questioned whether in that regard the applicant faced harm due to the security situation for reasons of race, religion, nationality membership of a particular social group or political opinion, and whether he faced such harm personally or it was harm faced by the population generally. The applicant replied that what he feared was being arrested at the airport because his [Relative 1] was on a watch list and they had the same surname. I have already rejected that claim. Further, the applicant has not provided any other evidence nor is there evidence before me that the applicant faces harm from the general security situation in Egypt for reasons of race, religion, nationality, membership of a particular social group, or political opinion. I thus find that he does not face persecution due to the general security situation in Egypt for any one or more of the reasons referred to in s.5(J)(1)(a). He has not provided evidence nor is there evidence before me that he faces harm from the general security situation in Egypt personally and I am satisfied on the information before me[4] that the harm he faces from the general security situation in Egypt is faced by the population generally and not faced by the applicant personally.

   Refugee criterion

   [3] Information in the DFAT Egypt Country Information Report produced on 17 May 2017 at [2.27] which is substantially the same as information in the DFAT Egypt Report Country Information Report produced on 24 November 2015 at [2.25]. (See ALQ15 v MIBP [2015] FCA 1253 (Logan J, 4 November 2015) at [17]- [18] and SZQEK v MIAC [2011] FMCA 628 (Smith FM, 12 August 2011) in relation to relying on updated information the substance of which was discussed at the hearing and does not raise new issues).

   [4] Ibid.

2. As I have rejected all the claims the applicant has made relating to his [Relative 1] and found that he does not face persecution from the general security situation for reasons of race, religion, nationality, membership of a particular social group or political opinion, I find that the applicant does not have a well-founded fear of persecution within the meaning of s.5J. Hence, he is not a refugee as defined in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection criterion

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I must consider the alternative criterion in s.36(2)(aa). I have rejected all the applicant’s claims relating to his [Relative 1]. Further, given I have found that the harm he faces from the general security situation in Egypt is faced by the population generally and not faced by him personally, under s.36(2B)(c) there is taken not to be a real risk that he will suffer significant harm. Thus, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that the applicant will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Family membership criteria 

4. 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.

5. In light of the above findings, the applicant does not satisfy the criterion in s.36(2).

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Mila Foster
   Member