1513288 (Refugee)

[2017] AATA 1378

1513288 (Refugee) [2017] AATA 1378 (4 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513288

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Linda Symons

DATE:4 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 August 2017 at 1:32pm

CATCHWORDS

Refugee – Protection visa – Egypt – Imputed political opinion – Supporter of Muslim Brotherhood – Credibility issues – Inconsistent evidence – False information provided

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 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, arrived in Australia [in] December 2014 as the holder of a [temporary] visa that was valid until [March] 2015. [In] February 2015, he was granted a Bridging A visa in association with his application for a Protection visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] February 2015. [In] September 2015, the delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 29 September 2015, he applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. He was assisted by an interpreter in the Arabic and English languages. 

5. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in his application for a Protection visa filed [in] February 2015 are summarised as follows:

    ·He supported the Muslim Brotherhood (MB) and participated in protests in support of the MB.

    ·The Egyptian authorities are targeting him because of his affiliation with the MB. He moved away from home in order to avoid arrest prior to leaving Egypt. He was in Alexandria for several months in hiding.

    ·His two brothers and have been arrested and imprisoned due to their support of the MB.

    ·He will be arrested, imprisoned, tortured and possibly killed by the Egyptian authorities if he returns to Egypt. He fears he will suffer the same fate as his brothers.

    ·He is being persecuted by State authorities. There is no State protection available.

    ·There is nowhere safe for him in Egypt.

13. In his visa application, the applicant stated that he will provide a further statement. He did not provide a further statement to the Department. He provided to the Department a copy of his Egyptian passport.

14. The applicant attended an interview with the Department [in] May 2015. During that interview he re-iterated and expanded on his written claims.

15. The applicant has lodged with the Tribunal a copy of his Egyptian passport and a Statutory Declaration dated [August] 2016 in which he expands on his written claims, responds to issues raised in the Department’s Decision Record and makes new claims which are discussed below. 

    Nationality

16. The Tribunal finds that the applicant is a citizen of Egypt based on his Egyptian passport and his evidence and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Does Australia have protection obligations to the applicant under the refugee criterion?

17. The applicant gave evidence to the Tribunal that a migration agent at [Organisation 1] prepared his application for a Protection visa. He stated that he provided the migration agent with the information to prepare his visa application and that the information he provided him was true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that he has never provided false information or bogus documents to the Department or the Tribunal.

18. During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, where he lived in Egypt, his overseas travel, his reasons for leaving Egypt and why he fears returning to Egypt. The Tribunal found aspects of his evidence to be implausible, vague, contradictory and unconvincing. He made new claims during the hearing. The Tribunal finds that he is not a credible or reliable witness for the reasons that follow.

19. During the hearing, the applicant gave evidence that he has [siblings] in Egypt. He stated that his father (who is now deceased) and his brothers were members of the MB but he was never a member of the MB. He stated that after he enrolled at University in [year] he became a supporter of the MB. When asked how he supported them, he responded that he supported their approach and their principles and their charity activities. He stated that whilst he was at University he participated in a protest in favour of the Palestinian uprising and, as a result, was arrested and detained for [number] months. He stated that he was then expelled from University in 1988. He stated that his father thereafter insisted that he distance himself from the MB. His evidence is that he joined the Army in [year] and left in 1992. He stated that he subsequently obtained employment in [Country 1].

20. The applicant’s evidence is that he lived and worked in [Country 1] from approximately September 1996 to December 2009. His evidence is that he took some time to settle in after he returned to Egypt from [Country 1] in 2009. His evidence is that he worked as a driver from approximately January 2010 to approximately March 2014. He stated that he drove a [vehicle] that was owned by his employer. He stated that he volunteered his services to the MB from time to time and assisted them with transport and the distribution of charity to the poor and needy.

21. The applicant’s evidence is that he attended protests against former President Hosni Mubarak in January 2011 and protests against the military coup and the removal of the democratically elected former President Mohamed Morsi in July 2013. He stated that he was involved in supporting the MB during the election campaign when former President Mohamed Morsi was elected and even drove people to the polling booth on election day. He stated that in August 2013 there was a big protest in Rabaa Square in Cairo and his role was to transport people from [City 1] to Rabaa Square to attend the protest. His evidence is that in August 2013 the Army launched a violent attack on the protesters and killed around 4000 people. His evidence is that there were protests against this massacre in Rabaa Square all over Egypt and he attended weekly protests in [City 1] that were organised by the MB.

22. The country information indicates that the distance between Cairo and [City 1] is [number] kms and that it takes [time] to drive this distance.[1] The applicant’s evidence is that the [vehicle] that he drove belonged to his employer. In these circumstances, the Tribunal finds it implausible that he could use his employer’s motor vehicle to volunteer to transport MB supporters from [City 1] to Rabaa Square. When the Tribunal raised this as an issue with him, he responded that he was entitled to 25% of the profit from driving the [vehicle]. This does not explain why his employer would consent to him using his [vehicle] for such lengthy periods of time when he was not generating an income during that time. This raises concerns about the credibility of these claims.  

    [1] [Information deleted].

23. During the hearing, the Tribunal asked the applicant a number of questions about the MB. He was able to correctly answer that Hassan Al-Banna was the founder of the MB[2] but did not know when it was founded. He was unable to answer other questions such as the organizational structure of the MB or the name of its political wing. This is not consistent with his claims that he supported the MB during the election campaign and even transported people to the polling booth on election day. The Tribunal would expect that if he was involved in the MB’s election campaign he would know the name of the political party he was supporting. This raises further concerns about the credibility of his claims.    

    [2] Hassan Al-Banna: The man who started it all, World Bulletin, 8 August 2013. (>

    In his visa application, the applicant claimed that his two brothers had been arrested and imprisoned because of their support of the MB. During the hearing, he gave evidence that he has [brothers] and his brothers, unlike him, are members of the MB and have been for a long time. He stated that his family lived in a small village and everyone knew everyone else in the village. He stated that his family are well known to be involved with the MB. He stated that two of them [attended] protests at Rabaa Square, were arrested in August 2013  and have been imprisoned since then. He stated that he does not know what prison they are in as they are moved from prison to prison.

24. The applicant gave evidence that he is in contact with his other siblings in Egypt from time to time. He stated that he last spoke to his brother [Mr A] just before Eid in 2017. He has not made any claims that his brother [Mr A] has been arrested and imprisoned or that there is a warrant out for his arrest or that he is in hiding in Egypt or that he has fled the country. The Tribunal would expect that if [Mr A] has been a member of the MB for a long time and was well known to be involved with the MB, he would have suffered the same fate as his brothers [or] the applicant. This raises further concerns about the credibility of his claims.   

25. During the hearing, the applicant gave evidence that in early March 2014 a friend of his, who was a Police [officer], warned him that there was a warrant out for his arrest. He stated that he returned the [vehicle] to his employer, said goodbye to his family and made his way to Alexandria. He stated that he did not take anything with him other than his clothes and wallet. He stated that he went to a [location] near Alexandria and stayed there until he left Egypt to come to Australia. He stated that he did not know the people with whom he lived [at the location]. In his Statutory Declaration dated [August] 2016, he stated that he lived [at the location] from March to November 2014 and only [left] to get a passport and the travel documents he needed.

26. During the hearing, the applicant gave evidence that he applied for his current passport at the [City 1] Passport Department in [2014]. When asked about the photograph in his passport, he initially stated that he gave a photograph of himself to a member of the MB who then photo shopped it to change the clothes he was wearing. (In his passport photograph he is wearing a dark suit.) When asked where the photograph was taken, he initially stated that it was taken near the [location] and then stated that it was taken at the [location] by a member of the MB on his mobile telephone. The Tribunal finds this evidence to be unconvincing and implausible.

27. The records of the Department indicate that the applicant came to Australia on a [temporary] visa. His application for a [temporary] visa is dated [November] 2014 and states that he was living and working in Alexandria as a [occupation] and had been doing that for 14 years. In support of his application for a [temporary] visa, he provided the Department with a number of documents in relation to his employer and business arrangements made between his employer’s company and a company in [Australia].

28. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this information is not consistent with the information he provided in his application for a Protection visa application in relation to where he lived and the work he did. It is also not consistent with the evidence he gave at the hearing. The Tribunal noted that this may lead it to the conclusion that he had provided false information and bogus documents to the Department to obtain a [temporary] visa and may also be providing false information to the Department and the Tribunal to obtain a Protection visa. He responded that he worked as a driver in Egypt and knows nothing about this company or job. When the Tribunal pointed out that the information was given by him, or on his behalf, to the Department and he was responsible for the information given on his behalf, he responded that this was the first time he knew about this information and he knows nothing about it.

29. The applicant stated that he paid a lot of money for someone to obtain the visa for him. He stated that he met this person and then accompanied him to the Australian Embassy. He stated that he was asked to dress well when he went to the Australian Embassy. The Tribunal does not accept that he did not know anything about the information provided to the Department to obtain his [temporary] visa as this is inconsistent with his own evidence to the Tribunal given earlier in the hearing. He earlier gave evidence that members of the MB organized for a company to apply for the visa on his behalf. He stated that they told him that he was applying for a Business visa and he was going to come to Australia as a supervisor of a business. The Tribunal therefore finds that he was at least aware that false information was provided to the Department to obtain his visa to travel to Australia and was complicit in it. This raises concerns about his credibility and the veracity of his claims.

30. A copy of the applicant’s Marriage Certificate and a passport size photograph of him were provided to the Department by, or on behalf of, the applicant in support of his application for a [temporary] visa. He gave evidence to the Tribunal that when he went into hiding he only took some clothes and his wallet with him. He would therefore have had to have contact with his family to obtain a copy of his Marriage Certificate. He would also have had to have contact with the person or company that was organizing his [temporary] visa to provide them with the copy of his Marriage Certificate. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this was not consistent with his evidence that he had no involvement in the processing of his application for a [temporary] visa other than attending the Australian Embassy on one occasion and this raised concerns about his credibility and the veracity of his claims.

31. The applicant responded that drivers take messages and parcels from one point to another and his wife gave their Marriage Certificate to a driver who took it to Alexandria and one of the members of the MB received it and gave it to the person who was looking after his application for a [temporary] visa. The Tribunal does not accept that these arrangements were made without his knowledge, consent and involvement as it is implausible.  

32. The applicant has provided to the Tribunal a copy of his passport which indicates that it was issued [in] 2014. His evidence is that he applied for his passport at the [City 1] Passport Department in [2014]. His passport was therefore issued whilst there was an outstanding warrant for his arrest. His evidence is that he left Egypt legally in December 2014 using his own passport. There was an outstanding warrant for his arrest at that time. The country information indicates that the Egyptian government conducts exit checks and DFAT assess that they are strictly enforced.[3] The Tribunal raised this as an issue with him and noted that his ability to obtain a passport in his name [in] 2014 and his ability to leave Egypt lawfully [in] December 2014, despite his claims that he was wanted by the Egyptian authorities on these dates, raise concerns in relation to the credibility of his claims. He responded that a friend of a member of the MB asked for [number] Egyptian pounds and took care of his passport. He stated that he only went to the Passport Department to sign for receipt of his passport. He stated that there is corruption in Egypt and you can get whatever you want through bribery. The country information indicates that corruption is widespread in Egypt[4]. It is therefore possible that he was able to obtain a passport and exit Egypt through bribery despite having an outstanding warrant for his arrest. The Tribunal is accordingly prepared to give him the benefit of the doubt.

    [3] DFAT Country Information Report on Egypt, 19 May 2017.

    [4] Ibid.

1. The applicant made a number of new claims during the course of the hearing. In a Statutory Declaration lodged with the Tribunal he made a new claim that he was arrested in December 1997 when he was at University and attended a demonstration in support of the Palestinians that was organized by the MB. He claimed that he was detained for [number] months and then released without any charges being laid against him. The Tribunal raised as an issue with him the fact that he had not made this claim in his visa application or during his interview with the Department [in] May 2015. He responded that he informed a migration agent at [Organisation 1] and maybe the interpreter made a mistake.

2. The applicant lodged his application for a Protection visa [in] February 2015. His evidence is that it was prepared by a migration agent at [Organisation 1]. The Tribunal finds it implausible that he would have told his migration agent about being arrested and detained in 1997 at that time and that his migration agent failed to put that information in his visa application. His Statutory Declaration is dated [August] 2016 and was prepared and signed by a solicitor/migration agent. This was after the delegate made a decision [in] September 2015. It addresses matters raised in the Department’s Decision Record. He made a claim in relation to being arrested in 1997 for the first time in his Statutory Declaration filed with the Tribunal. The Tribunal does not accept that these instructions were given to his migration agent at the time his visa application was prepared and his migration agent failed to include this information in his visa application.

3. During the hearing, the applicant made new claims in relation to the Police raiding and searching his house on several occasions. He stated that these raids occur at night and his wife and children are traumatised. When asked when these raids commenced, he initially responded that they started after he came to Australia. He then changed his evidence and stated that they started [months] after he went to the [location] in Alexandria and have continued until now. He offered no explanation as to why his house was being raided and searched. He stated that his extended family have sold their family home and his wife and children now live on their own in the outskirts of the city. He stated that there have been no Police raids since they moved out.

4. The applicant made no mention of the Police raiding his family home and searching it on a number of occasions since he came to Australia, or alternatively since approximately August 2014, in his visa application, during his interview with the Department [in] May 2015 or in his Statutory Declaration filed with the Tribunal. His failure to do so raises concerns about his credibility and the veracity of these claims.

5. The Tribunal raised as an issue with the applicant the fact that he was not a leader in the MB or even a member of the MB. The Tribunal noted that his very limited knowledge of the MB indicates that he was a low level supporter. The Tribunal noted that it had difficulty accepting that the Egyptian authorities would be interested in someone who did some charity work and helped to transport people. The Tribunal noted that he did not fit the profile of people who are being arrested. He responded that they are arresting entire families of people who have been active in the MB and have attended demonstrations. He stated that if the father is a member of the MB, the son will be arrested. He stated that his [relative]’s son was arrested, charged with [offences] and imprisoned and he is still at [School]. He stated that a driver [transported] a member of the MB to a demonstration. He stated that that was his job but he was visited by security officers at night.

6. The Tribunal noted that the Police are aware of where his wife and children live if they have raided his house and searched it on several occasions but have not arrested them. The Tribunal noted that this tends to indicate that they are not interested in getting to him. He responded that the Police raid his house in the middle of the night and it is traumatic for his children. He stated that two of his brothers have been arrested. He offered no explanation as to why his brother [Mr A] has not been arrested even though he is a member of the family and continues to live in Egypt.   

7. The Tribunal discussed with the applicant the following country information:

   DFAT understands that although large-scale arrests of brotherhood members and   supporters continue to occur in the context of counterterrorism operations, they are             no longer being targeted purely based on the affiliation to the organisation. It is   generally estimated that up to a quarter of Egyptians still sympathise with the   brotherhood’s cause to some degree, although the number of active members and               supporters would be considerably less than this. DFAT assesses that Muslim   brotherhood leadership figures and members who continue to pursue political   activities actively either within or outside the party structure are highly likely to be   arrested and prosecuted. Ordinary inactive members, party supporters and those                  with family links to members face a lower risk of being targeted for arrest, but may be   subject to arbitrary arrest in wider security actions. They are likely to come under the   close attention of authorities and be subject to surveillance and monitoring of their   activities.[5]

   [5] Ibid.

8. The applicant responded that what they do is called counter terrorism. He stated that there are massive arrests and not just of leaders or members. He stated that every family connected to the MB has a member of the family who has been arrested. He stated that an Italian man who was sympathetic towards the MB was arrested and he was not a member of the MB. He stated that twenty five Judges of the Supreme Court were dismissed and deprived of their entitlements just because they made the Rabaa symbol sign.

9. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Egypt and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

10. Having considered all the applicant's claims and all the evidence, the Tribunal finds that he is not a witness of truth. The Tribunal finds that he fabricated some of his material claims and embellished others for the purpose of obtaining a Protection visa.

11. The Tribunal accepts that the applicant was born on [date] and is a Sunni Muslim. The Tribunal accepts that he is married and has [children]. The Tribunal accepts that, prior to leaving Egypt to come to Australia, he lived with his wife and children in [a village] in the [City 1] area. The Tribunal accepts that when he was at University he attended a pro-Palestinian demonstration organised by the MB on the University campus in December 1987. The Tribunal accepts that, as a result, he was arrested by the Police and detained for [months] without charges. The Tribunal accepts that, as a result, he was expelled from University. The Tribunal accepts that, on the advice of his father, he thereafter distanced himself from the MB. The Tribunal accepts that he undertook military service in the army from [year] to 1992.

12. The Tribunal accepts that the applicant worked as a driver in Egypt. The Tribunal accepts that he occasionally assisted the MB by delivering aid to the poor and needy and drove his brothers to MB meetings and to the polling booth during the election. The Tribunal does not accept that he attended conferences, religious meetings, was involved in fundraising, transporting members of the MB, encouraging people to join the MB and helping people to vote for the MB. The Tribunal accepts that the applicant lived and worked in [Country 1] from about September 1996 to late 2009. The Tribunal accepts that he visited his family in Egypt once a year during that period. The Tribunal does not accept that he continued his involvement with the MB whilst he lived and worked in [Country 1].

13. The Tribunal accepts that after the applicant returned to Egypt he commenced working as a [driver] in early 2010. The Tribunal accepts that he worked for someone who owned the motor vehicle and received 25% of the profits. The Tribunal accepts that he assisted the MB by transporting financial and other aid to the poor and needy. The Tribunal does not accept that he participated in anti-Hosni Mubarak demonstrations in early 2011 or pro-Mohamed Morsi demonstrations in 2013. The Tribunal does not accept that he participated in any demonstrations in Rabaa Square in 2013 or transported people from [City 1] to Rabaa Square to attend those demonstrations. The Tribunal does not accept that he subsequently participated in protests in [City 1] against the massacre in Rabaa Square. The Tribunal accepts that two of his brothers [attended] the demonstrations at Rabaa Square and were arrested and detained. The Tribunal accepts that his [relative] and son were also arrested.

14. The Tribunal does not accept that, in early March 2014, the applicant was told by a friend in the Police force that there was a warrant out for his arrest and that the Police were looking for him. It follows that the Tribunal does not accept any of his claims that flow from that including that the Police regularly raid and search his house or that a warrant has been issued for his arrest and the Police are looking for him. The Tribunal does not accept that he is of adverse interest to the Egyptian authorities. It follows that the Tribunal does not accept any of his claims that flow from that.

15. The Tribunal accepts that, since coming to Australia, the applicant has not been involved in any political activities. The Tribunal accepts that he is in regular contact with his wife and children and contacts his brother [Mr A] and [other siblings] from time to time. The Tribunal accepts that he contacted [Mr A] shortly prior to the festival of Eid in 2017. The Tribunal accepts that he would like to live in Australia and bring his wife and children to live with him in Australia.

16. The Tribunal accepts that the applicant was a low-level supporter of the MB. Having considered his claims and evidence and the country information, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm for this reason if he returns to Egypt now or in the foreseeable future. The Tribunal has considered whether he will be imputed with being a member of the MB because of his father and brothers’ membership of the MB and their activities including his brothers’ participation in demonstrations and arrest at Rabaa Square and whether there is a real chance of serious harm or a real risk of significant harm to him for these reasons if he returns to Egypt. The Tribunal notes that he continued to live in his home and pursue his normal employment after two of his brothers were arrested in Rabaa Square in August 2013 and no harm came to him. The Tribunal also notes that his brother [Mr A] has continued to reside in Egypt and there is no evidence of any harm befalling him. Despite his claim that entire families are arrested because of one family member’s involvement with the MB, his wife and children have not been arrested. For these reasons, and in view of the country information, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm for reason of his imputed political opinion if he returns to Egypt now or in the foreseeable future.

17. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Egypt now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary       protection criterion?

18. The Tribunal has considered the applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Egypt now or in the reasonably foreseeable future.

19. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Egypt now or in the reasonably foreseeable future.

20. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

21. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

22. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

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

Linda Symons
         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.

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36Protection visas – criteria provided for by this Act

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(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.

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