1516519 (Refugee)

Case [2018] AATA 633

1516519 (Refugee) [2018] AATA 633 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516519

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Peter Vlahos

DATE:27 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 27 February 2018 at 6:26am

CATCHWORDS

Refugee – Protection Visa – Egypt – Religion – Christian – Particular social group – Egyptian Coptic Christian – Victim of kidnapping and extortion – Fear of harm by radical Islamic groups – Adverse interactions with radical Islamic groups – Applicants intervened in forced conversion – Pressure to follow sharia law – Availability of state protection – No effective state protection

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Alamdar v MIMA [2001] FCA 1244
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Lama v MIMA (1999) 57 ALD 613
Lama v MIMA [1999] FCA 1620
MIEA v Respondent A and B (1995) 57 FCR 309
SZDNE v MIMIA [2004] FMCA 717
Wang v MIMA (2000) 105 FCR 548
Weheliye v MIMA [2001] FCA 1222
Yang v Carroll (1994) 852 F Supp 460

Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of Egypt, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] November 2015.

  3. The applicants appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother in law, [Mr A]. 

  4. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

  5. The applicants were represented in relation to the review by their legal representative and registered migration agent.

    RELEVANT LAW

  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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’…

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AGLC
1516519 (Refugee) [2018] AATA 633
Case
[2018] AATA 633
Decision Date

CaseChat Overview and Summary

The applicants, a married couple from Egypt, sought a protection visa in Australia. They claimed to have been targeted by radical Islamic groups due to their intervention in preventing the forced conversion of a Coptic Christian. Their claims included vandalism of their property, arson of their car, the wife's kidnapping and assault, and extortion. The applicants asserted that they feared harm from these groups and that effective protection was unavailable from the Egyptian state.

The core legal issue before the Tribunal was whether Australia owed protection obligations to the applicants under the Migration Act 1958 (Cth). This required the Tribunal to assess the credibility of the applicants' claims and determine if they faced a well-founded fear of persecution based on their membership in a particular social group, specifically Egyptian Coptic Christians who had actively opposed forced conversions. The Tribunal also had to consider the availability and effectiveness of state protection in Egypt.

The Tribunal considered the applicants' evidence, including statutory declarations and submissions from their legal representatives, and the material from the Department. It noted the applicants' fear of reporting incidents to the Egyptian police, citing a perceived ineffectiveness and a concern that such reports would provoke further reprisals. The Tribunal acknowledged the specific incidents described by the applicants, such as the vandalism, car burning, and the wife's kidnapping and assault, which were allegedly linked to their opposition to forced conversions and the subsequent ransom demand. The Tribunal also considered the applicants' background as active members of the Coptic Christian community.

The Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.[2][2] AAT File No. 1516519 folio [13]Background The primary applicant, [Ms B] is a [age] year old female born in [City 1], Egypt and the second applicant, [Mr C] is [age] and is the applicant’s husband. Both applicants travelled to Australia to visit the applicant’s [sibling], arriving in Australia [in] December 2013, as holders of a visitor [visa]. The applicants had previously travelled to Australia as holders of visitor [visas] in February 2010, remaining for [a number of] weeks. Both applicants travelled to [another country] for short periods of time in 2004 and 2011 to visit the second applicant’s [sibling]. Prior to the applicants’ overseas travels they both worked at different organisations in [a particular field] having both obtained qualification s in this field. The applicants lodged their application for Protection visa [in] January 2014, and were granted the associated Bridging visa E to allow them to remain lawfully in the community. The applicants provided the following documents to the Tribunal prior to the hearing:§Submission on behalf the applicants prepared by their legal representative and registered migration [agent] dated 14 July 2017.§Statutory Declaration of the second applicant dated 10 July 2017.§Letter [fax] from [a priest from a particular parish] dated [in] July 2017. §Submission on behalf of the applicants prepared by their legal representative and registered migration [agent] dated 17 August 2017.§Statutory declaration of the applicant dated 25 August 2017.The applicant’s claims for protection The applicant’s written claims are to be found on the Department of Immigration and Border Protection (department) [File] from folios [46]-[51]. The applicants were also interviewed by the Department [in] March 2015. In summary the applicants’ claim that they have been targeted for harm because of their involvement in preventing a forced conversion to Islam of Coptic Christian. This resulted in the applicants’ apartment being vandalised by unknown persons, their car set alight and destroyed, the [main] applicant (wife) being kidnapped and held for ransom and later, assaulted whilst leaving church. The applicants’ made the following claims:§ Applicant and her husband were contacted by the parish priest at [Church 1] in [a district of Cairo] in May 2013, to assist in repaying a debt owed by [Mr D].§ The applicant claims that this debt was in relation to [goods] bought for his [business] and claims that the [seller] named [Mr E] asked [Mr D] to pay the debt, convert to Islam or face prison. § Both applicants claim they were involved with the Christian community and were servants of [a particular religious official]. Applicant two’s father in law was also a [religious official] in the Christian community. § Applicant claims that following their payment of [Mr D]’s debt at court that [Mr E] approached them and swore that they would regret what they had done. Applicant one’s statement indicates that Muslims often attempted to convert ‘ordinary simple Christians’ to Islam. § [Later in] 2013, both applicants were returning from a [particular activity]. On their return they discovered that their car which was parked in front of their building had been set alight. § Applicant started screaming and applicant two covered her mouth, advising they check their apartment. They discovered their apartment had been broken into and their belonging stolen. Threats had also been [left] such as, ‘we are not going to leave you alone, you infidels, you the cross worshipers…’ § Applicant wanted to report this incident to the police however applicant two advised her that this would provoke further retribution, reasoning that the police would do little to protect them. Following this, the applicants attempted to find new accommodation away from the ‘terrorist groups’ threatening them. § [Later in] 2013, the applicant hailed a taxi on her way to [work]. In the taxi was a veiled woman, they began talking and she [incapacitated the applicant in a particular way]. The applicant ‘fell unconscious instantly…’ When she awoke she found herself in an apartment surrounded by women wearing Niqab (face covered), they informed her that she had been kidnapped. § Applicant was advised that her husband would be contacted. The women swore at her, spat on her face and ‘constantly’ beat her. She claimed that during this ordeal she was bleeding having suffered a [serious injury]. § The second applicant was contacted so he could hear her ‘screaming and crying’ and told that he would need to pay [a ransom amount] in [a particular timeframe] and not to contact the police. § The kidnappers found out that the second applicant had reported her missing to the police and contacted him threatening to harm her. They also advised him that he had [less time] to get the money and that he would need to participate in a demonstration on [a particular date in] 2013 after evening prayers in support of [details of demonstration removed]. § Applicant’s husband and his father were able to collect the money and he took part in the demonstration as instructed. [A number of] men took the money from him and advised him to wait for applicant one’s return at their home. § The applicant was returned to their home blindfolded [at a particular time] and was bleeding heavily from her [injuries]. Her written account states: ‘…I did not know where I was or how long I stayed with them…’ § Applicant’s husband contacted [a medical specialist] who advised them to go to hospital for [treatment] for her [injuries]. Following this incident the applicant made a statement to the prosecutor’s office, followed by an examination by the forensic medicine officer.§ Both applicants claim after this incident they resigned from their jobs, feeling that they were unsafe and would be targeted again by ‘thugs’. The applicant advised that one of the veiled women involved in her kidnapping had told her that she had not suffered enough and that it was only the beginning. § [Afterwards in] 2013 both applicants were living with her father in law in [City 1]. [Later in] 2013, after leaving church they were stopped by a group called [Group 1]. The group verbally and physically abused them, making reference to the applicant being unveiled and her husband’s hair.§ Both applicants noticed that [Mr E] was with the group and they became fearful on remembering that he had advised them that he would never leave them alone. Both applicants fearing for their safety to [a particular location] from [a particular date in] 2013 until they travelled to Australia.

Evidence

Evidence Before The Court

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse of the applicant.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the applicant and her husband (hereinafter referred to as the ‘second applicant’). For the following reasons, the Tribunal has concluded that the decision under review should be should be remitted for reconsideration. Country of nationality and identity Based on copies of the applicants’ passports, which were provided to the Department of Immigration & Border Protection (the ‘Department’)[1], the applicants’ oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Egypt and assessed their claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Act. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicants’ identities as they have claimed. [1] Department of Immigration and Border Protection [File] Folio [226] and [98] The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.[2][2] AAT File No. 1516519 folio [13]Background The primary applicant, [Ms B] is a [age] year old female born in [City 1], Egypt and the second applicant, [Mr C] is [age] and is the applicant’s husband. Both applicants travelled to Australia to visit the applicant’s [sibling], arriving in Australia [in] December 2013, as holders of a visitor [visa]. The applicants had previously travelled to Australia as holders of visitor [visas] in February 2010, remaining for [a number of] weeks. Both applicants travelled to [another country] for short periods of time in 2004 and 2011 to visit the second applicant’s [sibling]. Prior to the applicants’ overseas travels they both worked at different organisations in [a particular field] having both obtained qualification s in this field. The applicants lodged their application for Protection visa [in] January 2014, and were granted the associated Bridging visa E to allow them to remain lawfully in the community. The applicants provided the following documents to the Tribunal prior to the hearing:§Submission on behalf the applicants prepared by their legal representative and registered migration [agent] dated 14 July 2017.§Statutory Declaration of the second applicant dated 10 July 2017.§Letter [fax] from [a priest from a particular parish] dated [in] July 2017. §Submission on behalf of the applicants prepared by their legal representative and registered migration [agent] dated 17 August 2017.§Statutory declaration of the applicant dated 25 August 2017.The applicant’s claims for protection

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal asked the second applicant did he report this incident to the local police. The second applicant’s response was that he decided not to report these incidents to the local police because he feared further reprisals being committed on him and his wife by [Mr E] or the by the members of his group. The Tribunal also notes the second applicant’s comments in his statutory declaration dated [in] July 2017 in which he states the following concerning the reasons why he did not report these incidents to the local police:[3]“…I did not report these events to the police, because they concerned property damage only. Having regard to the ineffectiveness of the police, I did not think that a report of property crime would have been investigated in any event. We also did not have anything such as home or car insurance, so there was no economic need to make such a report. Furthermore, I thought that the feud between me and my wife on the one hand, and the people whose forced conversion we disputed on the other, would be regarded as settled. They had vandalised my home and torched my car, and so in my mind, they had gotten their ‘revenge’. As I said in the interview with the Department, for me to report to the police would only give these people a reason to seek another reprisal...” [3] AAT File no. 1516519 Moreover, the Tribunal was told that in the week the second applicant’s car was burnt and his apartment vandalised [other events occurred, which discouraged him from reporting to the police]. After [a period of time], the second applicant’s wife was kidnapped. The second applicant told the Tribunal that when he returned home after a day at work, he realised that his wife was not at home. He called her mobile but there was no response and then spoke with one his wife’s [relatives] to see whether he knew where she was and was told that he had not heard or seen her. The second applicant resolved that he would not make any report (as yet) to the local police until a period of 24 hours had lapsed which would also provide him with time to check the local hospitals. Then, the wife’s abductors called the second applicant and he spoke with his wife who confirmed that she had been abducted. The abductors told the applicant that no harm would come to his wife if he did not report the abduction to the police and that he provide a considerable sum of [money] to them prior to her release. The Tribunal was told that having received the abductors demands he tried to raise the funds demanded by selling [personal items] and receiving some funds from his father but on this occasion the he also went to the police because it involved his wife but he doubted that the police would assist him. Then later in the afternoon, he received a call from the abductors instructing him not to return to the police and provided him with a [time] limit to organise the ransom money. Following this, the second applicant was again instructed to go to a particular [place] and to walk (with the money) in being in bag. The second applicant did as he was told. Then, when at the designated place, [a number of] people approached him and took the bag he was holding from [him]. The second applicant later found out that his wife had been released.