1601121 (Refugee) - [2017] AATA 1028

1601121 (Refugee) [2017] AATA 1028 (6 June 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601121
DIBP REFERENCE(S):  CLF2013/295546
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Peter Vlahos
DATE OF DECISION:  6 June 2017
DATE CORRIGENDUM
SIGNED:4 July 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
Paragraph 11 of decision record should read as follows:

For the following reasons, the Tribunal has concluded that the decision under review should be remitted with a direction that the applicant satisfies s.36(2)(a) of the Act
Peter Vlahos

Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601121
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Peter Vlahos
DATE:6 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 06 June 2017 at 11:06am

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Christian – Particular social group – Elderly women – Illegal dispossession of residence – False charges of proselytising Muslims – No family support – Militant attacks on churches – State protection

LEGISLATION
Migration Act 1958, ss 36, 65, 91R(1), 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
Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)
Lama v MIMA (1999) 57 ALD 613
Lama v MIMA [1999] FCA 1620
SZDNE v MIMIA [2004] FMCA 717
Weheliye v MIMA [2001] FCA 1222
Wang v MIMA (2000) 105 FCR 548

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Egypt, applied for the protection visa [in] November 2013 and the delegate refused to grant the visa [in] January 2016.
The applicant appeared before the Tribunal on 27 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review. The [representative] attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1601121 (Refugee)

Details

AGLC: 1601121 (Refugee) [2017] AATA 1028
Case: [2017] AATA 1028
Decision Date: 6 June 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an elderly, illiterate Coptic Christian widow from Cairo, Egypt. The applicant had previously visited Australia on temporary visas and lodged her protection visa application in November 2013. The Department refused to grant the visa in January 2015, leading the applicant to seek review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Australia had protection obligations towards the applicant under the *Migration Act 1958* (Cth), specifically under sections 36(2)(a) and 36(2)(aa). This required the Tribunal to assess whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group or for reasons of religion, and whether she could obtain protection from the Egyptian state. The Tribunal was also required to consider relevant policy guidelines and country information assessments.

The Tribunal accepted the applicant's identity and nationality as Egyptian. It considered the applicant's claims of persecution, including allegations of illegal dispossession of her residence, false charges of proselytising Muslims, lack of family support, and militant attacks on churches in Egypt. The Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, thus satisfying the criterion in s.36(2)(a) of the Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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 The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the tribunal has concluded that the decision under review should be …Country of nationality and identity Based on copies of the applicant’s passport, which was provided to the Department of Immigration and Border Protection (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Egypt and assessed her claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (as amended)(herein referred to as the ‘Act’). On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed. The Tribunal has before it the Department’s file relating to the applicant. 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.[1]Background[1] AAT File Folio 8 The [applicant] is [an age] year old widow and grandmother from Cairo, Egypt. She is a Coptic Orthodox Christian and speaks, Arabic. She married her late husband in 1972 and has [number] children, [number] of them living in Australia and her [other child], who lives in [Country 1]. The applicant has never worked and is illiterate. [The applicant] first travelled to Australia as a holder of a [temporary] visa in November 2003 and stayed in Australia for three months. She subsequently visited Australia two more times, in December 2008 and in January 2010. [The applicant] last arrived in Australia [in] May 2013 as a holder [of a temporary] visa, which was valid for one year. [In] November 2013 [the applicant] lodged her application for protection visa (subclass 866) which is the subject of this decision. She is currently holding a Bridging (subclass 010) visa which was granted with her application. [In] January 2015, the Department refused to grant [the applicant] a protection visa. On 1 February 2016, the applicant applied to the Migration and Refugee Division of the Administrative Appeals Tribunal (the ‘Tribunal’) for a review of the Department’s refusal to grant her a protection visa. The applicant provided the following documents to the Tribunal prior to the hearing:§ Appointment of Representative and Appointment of Authorised Recipient – MR Division form appointing [the representative] as the applicant’s representative.[2]§ Extract of Translation in English of residential lease agreement. § Applicant’s representative written statement.§ Applicant’s written statement to the Tribunal.§ Written statement of the applicant’s son, [Mr A]. [2] AAT File Filo 61The Applicant’s claims for protection

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Peter VlahosMember

Ratio Decidendi

Legal Principle Established

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