1602826 (Refugee)

1602826 (Refugee) [2016] AATA 4835 (19 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602826
COUNTRY OF REFERENCE:                  Egypt
MEMBER:S Baker
DATE:19 December 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 19 December 2016 at 5:02pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Sufi – Political opinion – NDP member – Mubarak regime supporter – Support for politician – Disappearance of family members – Credibility issues
LEGISLATION
Migration Act 1958, ss 36, 438(1)(a), 424AA
Migration Regulations 1994, Schedule 2
CASES
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs
(1998) 86 FCR 547

Minister for Immigration and Ethnic Affairs v Guo
(1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Rajalingam
(1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs
(1994) 52 FCR 437

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

[The applicant] is a citizen of Egypt. He is a Muslim and resided in [City 1], and worked for periods in [town] as [occupation]. He arrived in Australia in 2007 as a student. He has always been an active member of the NDP and the Mubarak regime. The applicant’s family helped [Mr A] and for this he and his family were targeted by the Muslim brotherhood. The applicant’s family was targeted in a series of attacks and kidnappings culminating in the applicant being attacked by members of the political arm of the Muslim brotherhood on his return to Egypt in September 2012, and his father and brother disappeared in February 2013. He fears being targeted by the Muslim Brotherhood, army and Egyptian government due to his links to the NDP and political views.
The delegate refused the application on the basis that the threats to his father were not plausible, the lack of evidence of [Mr A]’s supporters being targeted, and due to a lack of detail and implausibility did not accept the series of attacks on the applicant and his family in September 2012, and did not accept his father and brother had disappeared given the applicant’s lack of detail and lack of overall credibility and found the applicant was not a witness of truth. The delegate went on to assess the applicant’s claims in relation to aspects that were accepted and found the applicant did not face a real chance of serious harm, nor a real risk of significant harm. The applicant did not provide a copy of the delegate’s decision with his application for review.
A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Egypt and, if not, whether 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and nationality
To the Department the applicant provided copies of his Egyptian passport and Identity card. On the basis of this evidence and with no evidence to the contrary, I find that the applicant is who he claims to be and that he is a national of Egypt, which is also his receiving country.
There is no evidence before me to suggest that the applicant has a right to enter and reside in a third country and I so find.
[The applicant]’s claims and evidence
The applicant provided an undated statement attached to a submission dated 25 November 2012. In this submission the applicant claimed that:
·     He had always been an active member of the National Democratic Party (NDP) and his family members were dominant figures before the January 2011 revolution, and he personally agrees with the principles of the NDP;
·     His family is a prominent family involved in politics and have been loyal supporters of the Mubarak regime whilst not being involved in corruption;
·     When the applicant made a short return visit to his sick parents he was shocked by the state of the country where the security and stability had changed dramatically;
·     The applicant lived in the Delta area which had the largest number of votes against the Muslim Brotherhood. His family supported [Mr A] against Morsi in the Presidential elections. [Mr A] was invited to the family home and was supported by the applicant’s family and this was aware of this. During the election campaign the applicant was not aware that people associated with the Muslim Brotherhood had approached and threatened his family and told them to stop their public support for [Mr A];
·     On his return trip to Egypt he was stopped a number of times by Salafis who threatened him and told his father to stop supporting the old regime;
·     After Morsi came to power the Muslim Brotherhood started taking revenge on those who had opposed them and the applicant and his family were their first victims;
·     In September 2012 his father was attacked by a group of people the day after he received a threatening call;
·     His [Relative 1] had his land confiscated and his [Relative 1]’s [family member] was kidnapped for a ransom and the [family member] said he had been kidnapped by a group of people growing beards;
·     The applicant’s [family member] was beaten on the main road leading to the village;
·     The family are now in hiding, or looking to find a safe have overseas. His [Relative 2] who went to [another country] was beaten to death;
·     Before the applicant left Egypt he was attacked with his father by a group of members of El Horeya well Adala party, the political arm of the Muslim Brotherhood and from this he has scars in his [body] and [injuries] in his [limb];
With this statement was a submission which argues that the applicant is owed protection, and membership proof of his father’s membership of the NDP. The submission claims there was a death of a Muslim Brotherhood member in Damnhoor which inflamed the situation. The submission claims he will be harmed on the basis of his political opinion and membership of a particular social group, but does not discuss what this grouping is. There are also some 2012 news reports which have been provided.
At interview the applicant provided further detail of the above claim and further claims:
·     That he was a Sufi, but not associated with the Salafists or Muslim Brotherhood;
·     that his father was a leader of the NDP in his area until 2006, and a member until 2011;
·     in 2010 the applicant helped his father with the Egyptian parliamentary elections, helping organise meetings in the village;
·     from August 2011 until October 2012 the applicant’s father and [Relative 1] started to receive threats over the phone form people believed to be members of the Muslim Brotherhood;
·     when [Mr A] visited the applicant’s [Relative 1], who was [an official] of the village, in March 2012, the frequency of threats increased;
·     [In] September 2012 the applicant and his father were stopped in their car by [number] bearded men, who had put a tree across the entrance to the town. When they got out of the car they were beaten by the men. The applicant was knocked unconscious and only remembers waking up in hospital. Because of their bears, and due to the family opposition and the threats, the applicant believes these were the Muslim Brotherhood;
·     He received [injuries] from being hit [with] [a] [weapon] and having his [part of limb] broken by a block of wood, and his father had [an injury] from being hit there;
·     The applicant was released from the hospital [in] September 2012 and he returned to Australia [in] September 2012;
·     The applicant’s father told him that the applicant's [family member] was beaten sometime in September 2012. The [family member] was beaten on [separate] occasions on the same day while walking down the main village road. The first [number] occasions were to insult and humiliate him, and the [next] put him in hospital. The applicant believed it to be a random attack due to not being a resident of the area;
·     In September 2012, Salafists in the village also seized some farm land they were renting that the applicant’s family owned and the Salafists refused to leave the land. This situation was ongoing and had not been resolved;
·     The applicant reiterated his claims about the kidnapping of his [Relative 1]’s [family member] in September 2012;
·     His father and brother disappeared in unknown circumstances in February 2013. His mother (prior to her death due to natural causes in February 2014), [Sibling 1] and his extended family do not know the circumstances of the disappearance. The case has been reported to the police but remains unsolved. The applicant has no further information regarding the case;
·     His [Sibling 1] and [family member] go to work and hide the rest of the time in their apartment in Cairo, due to the beatings of the [family member] in September 2012;
·     The applicant has lost contact with his family and friends in Egypt;
·     He fears he will be harmed by the Muslim Brotherhood, the army and the Egyptian government due to his links to the NDP and his political views;
·     He also fears generalised violence in Egypt and says that his home area is a very violent area. He cannot relocate as he will be viewed as a stranger and treated with suspicion and animosity in any area he travels to and he might be beaten or jailed through false accusation by other persons in the community;
·     Through information from his extended family and articles sourced on the internet, the applicant believes his extended family (specifically those with good occupations) are being targeted by acts of violence or imprisoned for no reason;
·     Although the Muslim Brotherhood has been listed as a terrorist organisation, their political allies and supporters, as well as sleeper cells exist within government and will target the applicant on return due to his NDP links.
To the previous Tribunal the applicant provided a large number of documents, received on 14 October 2015. These included:
·a statement from the applicant’ [Sibling 1] that the attached documents were extracted from the lawyer [name];
·a medical report for the applicant, dated [in] September 2012, with translation;
·a doctor’s report from [date] October 2015 indicating the doctor has examined the applicant and the medical report and the applicant has injuries consistent with the medical report;
·a reception ticket for admission to the general [hospital] for the applicant dated [in] September 2012, with translation;
·a police report dated [in] September 2012, in which the applicant and his father detail the attack against them [in] September, with translation;
·a student card for the applicant from [a] University, with translation;
·a police report dated [in] April 2013, in which the applicant’s [Sibling 1] made a report about the disappearance of his father and brother, with translation;
·a certificate issued [in] December 2014, provided to the applicant’s [Sibling 1], about the applicant stating that he is banned to travel for political reasons and is on the monitoring list for arrivals, with translation;
·a public prosecution certificate indicating the applicant [in] September 2014 established a political party without licence, indicating the applicant was sentenced in absentia [in] November 2014 to [number] years in prison with a bond of [amount] pounds, indicating the certificate was issued on the applicant’s request [in] December 2014, with translation;
·a police report dated [in] September 2012, in which the applicant’s father made a report about the seizure of his land by [number] people from the Freedom party and Al Nour party, with translation;
·the passport, identity card, a certificate and travel documents for the applicant’s [Sibling 1], showing travel to [Country 2] in November 2013;
·a reception ticket for admission to the general [hospital] for the applicant’s father dated [in] September 2012, with translation;
·several news reports about the situation in the applicant’s home area, about [Mr A] and other leaders in Egypt;
·several character references for the applicant and his efforts to secure voluntary work;
·a doctor’s report dated [in] June 2014 indicating the applicant suffers from depression which in their opinion is secondary for significant personal factors, several prescription forms.
He also provided a further document from the internet at hearing.
When constituted to me I invited the applicant to a hearing, and noted that he had provided copies of police reports and the travel ban and public prosecution certificates, and requested he provide originals prior to the hearing.
The applicant’s counsellor provided a letter, dated [in] September 2016, in which the counsellor recounted what the applicant had told him and indicated the applicant had been counselled.
Credibility
Over the course of the hearing I developed significant concerns with the evidence of the applicant. His evidence was vague and undetailed about the events he claimed to have experienced. I have serious concerns about the documents he has provided, and these concerns were amplified because the Department received a dob-in in relation to these concerns. For these reasons, discussed and analysed below, I developed concerns with the applicant’s credibility which lead me to doubt his general truthfulness and credibility as a witness, leading me to have doubts about all of his claims and his claim to fear harm on return to Egypt.
Consideration and findings on the claims of the applicant
The attack of September 2012
The applicant claims that on his return visit to Egypt in September 2012, he and his father were attacked on the road. However, I had significant concerns with his recounting of this event.
His evidence on this event was undetailed. Whilst I accept that it would be reasonable for him to have little memory of the event itself, having been, he claims, knocked unconscious, he did not recount the subsequent sequence of events in any great detail or accuracy when compared to the reports he has provided. Most concerning, he said he and his father had been knocked unconscious and were taken to hospital in an ambulance, and he did not know how the ambulance knew to come, his father had told him there was an ambulance. I asked him again if he knew how the ambulance was called and he said he did not. I noted to him that the police report dated [in] September 2012 which he had provided, which detailed his and his father’s statements on the incident, indicated that the applicant had told the police that when he had woken up from the coma, they were told that [name] had informed the ambulance and the ambulance had taken them to hospital. He said it was the report from Egypt, it was not his words. I noted that the report indicated that he had made the report and answered questions from the police, including this answer. He said he was unconscious so how did he do the report. I noted it was dated [in] September, after he had woken from the coma. He said the police had not asked him this. I noted that the translation indicated they had, and indicated that second page of the report where the question was asked. He then said that when the police asked that question his father was next to him and he answered it. I noted I did not think this was the case, and I note that his father appears to have answered the same question when he was questioned. The applicant said that it was a long time ago and a lot has happened. I have considered his responses, and I remain concerned that he was adamant that he did not know who had called the ambulance, and then provided a range of reasons why this was not contradictory with his answer in the police report, many of which also seemed not borne out by the police report – I do not accept his range of answers, I do not accept that his father gave this answer for him in the report, because the police also spoke to his father and asked the same question about who had called the ambulance. Whilst I accept that the applicant would have been traumatised by the events, and had been unconscious, he had regained consciousness and was cogent enough to give clear and cogent answers to the police, so I do not accept this forms any part of the reason why he was adamant he did not know who had gotten the ambulance. I have considered that it was a number of years ago, but this is one of the most significant events in his claims, and the one in which he was physically harmed, and I do not accept that he would forget such an important aspect over the years. I find that the applicant has given evidence inconsistent with the police report he has provided, and I find that this is about a significant aspect of his claim to have been attacked, knocked unconscious, woken in hospital and reported to the police. I find that this casts doubt on whether this sequence of events happened, and on the police report which reports on these events. It leads me to have doubts about his general credibility. In this regard I note that the applicant, in giving a variety of explanations or responses appeared willing to tailor his responses – at first claiming he was unconscious so how could he give the police report, and when it was pointed out that it was taken on the [date] of September, he then went on to claim the police had not asked him this question, and when it was pointed out the report indicated they had, he went on – this sequence of responses from him causes me concerns because it appears to indicate that he was willing to provide explanations not in accordance with what actually may have occurred, but to address the concern I had expressed, and when a further concern was expressed, he went on to try and address that.
He also said that he had the scars to prove the attack. I noted that the medical reports from Egypt and Australia did not indicate how he had sustained the injuries and even if he had scars this did not necessarily mean that he had got them the way he said he had.
Documents
The applicant provided a number of documents to the Tribunal. I had a number of concerns with these documents which I raised with the applicant at the hearing.
I raised with the applicant my concern that he had only supplied the documents at the Tribunal stage, in October 2015, and asked why he had not provided them to the Department. He said that it was because he had escaped from Egypt. I noted that there was a three year gap between him escaping and him providing the documents, which seemed a long time given many of these documents were dated 2012 or earlier. He said he had not provided them earlier as he did not realise how important the documents were, he thought his story was more important.
I raised with the applicant my concerns that document fraud, even of ‘official’ documents, was very common in Egypt,[1] which, with the other concerns expressed, might lead me to doubt that the documents he had provided were genuine. I noted my concerns about the particular documents, in that it appeared that these documents were not originals, which I had requested he provide before the hearing, and the wet stamps, which were designed to authorise the text in a completed document, appeared to be under the text, which, if true, would mean they had been placed there before the text, rather than after, calling into question whether the stamps did authorise the text. The applicant said the police make a photocopy and then stamp it. I explained that it did not appear that these documents had been produced in that way because it appeared some of the stamps were under the writing. The applicant responded by saying that if I was suggesting that the documents might be fraudulent it meant there was no security in Egypt, which was what he was telling me. He said I could ask the Egyptian Consulate if the documents were true or not. I explained to him that I would not do this as that action might put him in danger and I did not think he had provided explanations for the concerns. I noted that if I came to the conclusion that these documents were fraudulent or non-genuine, this may lead me to place no weight on these or other documents he had provided, may lead me to doubt the claims the documents purported to be about, and may lead me to doubt his overall credibility. He responded that when he left Egypt he did not know he would need all these papers, there was nobody to explain to him that he needed these papers, then after the application was refused at the Department stage, he contacted a lawyer who got him the papers. I noted that this didn’t seem entirely correct because to the Department he had provided proof of his father’s membership of the NDP and reports about the situation in Egypt – which seemed to me to show that he had understood that documentation would be relevant to his case, and at that stage he had already made the police report and had been discharged from hospital, so I did not see why he could not have also provided these documents at least to the Department. He said it was because he had fled and then he had things happen like his mother died and his brother and father disappeared.
[1] For example in a report dated 3 July 2014, DFAT provided information that ‘Post does not have any specific information on the availability of fraudulent court/legal documents since the ousting of former president Morsi. Corruption however is a serious problem in Egypt and impacts on all areas of life. Contacts have told Post that document fraud is rife, involving not only counterfeit documents but also official documents or reports that have been obtained by way of bribes. Egypt was ranked 114th out of 177 countries in Transparency International's 2013 Corruption Perceptions Index, as levels of bribery, abuse of power and secret dealings remained high.’ CX322827.

I do not find his explanations for the identified concerns with these documents at all convincing.
I do not accept his explanations for why he has provided these documents late in the process, after his case was lodged with the Department in December 2012, or prior to the interview in April 2014 – the applicant indicated at hearing that he had lodged on this date, been interviewed in April 2014 over a year later, and the decision, he confirmed, was made by the delegate in February 2015, giving him ample time to provide them at the time of lodgement or during the processing of his case. The applicant did provide some documents to the Department and I do not accept that he would not have been aware that the police report and hospital documents would assist his application and support his claims and therefore I do not accept his reasons for not providing these earlier. I understand that he claims to have fled Egypt, but he had a number of years to assemble and provide many of the documents he then subsequently presented to the Tribunal in October 2015, but did not do so until then. In particular I do not understand why the applicant would not have provided the police report, made in September 2012, to the Department during the considerable time that his case was before the Department – the police report would appear to be clear contemporaneous evidence of one of the main events he claims to fear returning. With my other concerns about his evidence inconsistent about who informed the ambulance above, and my concern raised with him about the incidence of document fraud in Egypt, the delay in providing the documents leads me to have concerns that these documents are not genuine.
Dob-in
I put to the applicant under s.424AA information on the Departmental file that came from an anonymous dob-in. It is relevant to note here that in considering the report I have had regard to the document at Df. 195 in which it is indicated that there is a s.438(1)(a) certificate attached. I cannot find such a certificate on the Department file. I therefore find that the postulated s.438(1)(a) certificate is invalid, and I did not raise this with the applicant. Whilst I had regard to the sensitive nature of the information, being from a third party who may desire the information to have been provided in confidence, I put to the applicant as much information as was necessary for him to comment and respond meaningfully to the information which I considered relevant to his claims. I explained the provision of information under s.424AA, and his rights.
[Details deleted].
The applicant indicated he understood the information. I noted that this information was relevant as it may indicate he was not in genuine need of protection, and may indicate he applied for protection for other reasons, may indicate he had the intention to produce fraudulent documents, which may indicate some or all of the other documents he had provided were fraudulent, may lead the tribunal to doubt his general credibility, and that these concerns, subject to what he may have to say, may be the reason or a part of the reason for affirming the decision. The applicant indicated he understood the relevance of the information. The applicant was told he could have more time but elected to respond immediately.
He said he didn’t know who this person was, it was not true, lots of incidents had happened in Egypt, he had been doing a lot of work with the psychologist, and in the past 4 years he has not been to Egypt as he was afraid, and he won’t go as he is too frightened. It was not true that he wants to stay in Australia for other reasons; he is staying here as he needs protection and this is the only country that can give it to him. He said he was unhappy about the information and that I believed it, as it was not true. He said I should not base my decision on somebody anonymous getting in touch and giving this information.
I noted that I did not necessarily place great weight on anonymous dob-ins, but that this dob-in appeared to know some important [information] and the information also appeared consistent with other concerns I had including about the documents he had provided. It appeared to match some concerns that I had.
In response he said that he was afraid to return to Egypt, as I had stated, he was afraid to be persecuted, he had had his [body part] broken and a broken [limb] and he and his family have been exposed to danger. He said the papers from Egypt were true, and had been sent by a lawyer and I could call the lawyer. He said there was no security in Egypt and he could not sleep. I noted that I did not think I would call the lawyer, because I was not sure he had addressed the previous, independent, concerns I had with the documents, raised prior to the dob-in information, and it was up to him to provide evidence to make out his case. He said I had not asked him enough questions about what happened when [he was injured]. I noted that I had had regard to the evidence he had previously provided to the Department and Tribunal on this, but that as we had discussed I may doubt that this had happened as he claimed given my credibility concerns. The applicant later said that the address provided had not been his address at that time.
I have had regard to the relevant dob-in, and to the applicant’s response and comments. I did not find his comments or response convincing at all. Given my concerns with the documents already expressed above, and in concert with my findings above, and given that the anonymous person knew personal details of the applicant, I place some weight on the anonymous dob-in and the information provided. I find that the dob-in is indicative of concerns I already had and which I have expressed and made findings on above, and the dob-in strengthens these findings.
Conclusions on credibility
I have had regard to the concerns above and to my findings. These lead me to conclude that the applicant is not credible or a witness of truth.
Findings on claims
On the basis of my findings above I find below that most of the claims of the applicant have been fabricated in order to establish a claim for protection.
On the basis of my findings above and my conclusions on his credibility, I make the following findings.
I accept that the applicant has some Sufi practices, and may identify as Sufi. However, as I discussed with him at the hearing, it is not true to say that Sufis are associated with Shia, and Sufism has deep historical roots in Egypt,[2] has been said to be the ‘default setting of Muslim religious life in Egypt by one scholar,[3] that Egyptian society is very accepting of Sufism and practices and that there are some 15 million Egyptians who claim to practice Sufism.[4] I asked if he had ever suffered any harm due to his Sufi faith and he said he had but did not directly indicate what harm. He said that the police take Sufi and persecute them, they celebrate something like a birthday party and the authorities do not allow them to. I noted the information I had and said that I might assess that Sufis are not harmed, discriminated or harassed on account of their Sufi faith on that basis. In response he said that the Muslim Brotherhood and Salafis kill them.
[2] Harvard Divinity School, Religious Literacy Project, ‘Sufism in Egypt’,
[3] Brown. J., “Salafis and Sufis in Egypt, Middle East, December 2011, The Carnegie Papers,
[4] Deasy, K., ‘The Sufis’ Choice: Egypt’s Political Wild Card’, World Affairs, September/October 2012,
I do not accept that the applicant and his father were attacked [in] September 2012, or at any other time, and beaten and knocked unconscious, by members of El Horeya well Adala party, the Freedom and Justice party, Muslim Brotherhood, Al Nour or any other Muslim Brotherhood or Salafi affiliate. Whilst I accept that the applicant has scarring consistent with his claimed injuries, I do not accept that he sustained these injuries in the manner he claims, nor from an attack. As below, I do not accept that the documents he has produced, including the medical reports and reception ticket, are genuine documents, but even if they are, they do not indicate how the applicant sustained these injuries. I accept the medical report of the [a] health service Doctor in [location], but this does not indicate how the injuries were sustained. I do not accept that these injuries were sustained by the applicant in an attack, nor in an attack motivated by politics or membership of his family or any other reason.
Whilst I am willing to accept that his [Relative 1], and possibly his father, had had some involvement with the NDP (although I do not accept that they were dominant figures, nor that his father was a leader until 2006, nor that his family was particularly prominent), given my findings about his credibility I do not accept that the applicant was an active member of the NDP, and I find that his family’s involvement with the NDP ceased when the party was dissolved in April 2011.[5] I am willing to accept that the applicant helped his father with the 2010 Parliamentary elections.
[5] BBC News, ‘Egypt: Mubarak's former ruling party dissolved by court’, 16 April 2011,
I note that the applicant states that in the delta area where he lived, there was the largest number of votes against the Muslim Brotherhood. Whilst I accept that his family may have supported [Mr A], and [Mr A] may have gone to their home prior to the 2012 Presidential elections, given the local support for [Mr A], and given my credibility findings, I do not accept that the applicant’s family, or him, faced anything more than harassment from Muslim Brotherhood supporters in their areas for their support, nor that this led to threats or an increase in threats.
On the basis of my credibility findings I do not accept that the applicant was stopped by Salafis on any of his return trips to Egypt and threatened and told him or his father to stop supporting the old regime.
On the basis of the above reasoning, and my credibility findings, I do not accept that after Morsi came to power the Muslim Brotherhood took revenge on his family as prominent [Mr A] supporters, and I note that the applicant has not been able to explain why they would be motivated to do this, given that Morsi had won a clear victory.
On the basis of my credibility findings and the reasoning above, I do not accept that the applicant’s father was attacked in September 2012.
On the basis of my credibility findings and my concerns with the documents provided, I do not accept that the applicant’s [Relative 1] had his land confiscated or seized by Salafis and members of the Muslim Brotherhood or anyone else, and I do not accept the police report provided for the reasons above and below.
On the basis of my credibility findings, I do not accept that his [Relative 1]’s [family member] was kidnapped for a ransom, by people growing beards or anyone else.
On the basis of my credibility findings I do not accept that the applicant’s [family member] was beaten on the main road leading to the village on [separate] occasions, or at all, nor that he was put in hospital by the last attack.
I do not accept that the applicant’s [Sibling 1] and [family member], or other members of his family are in hiding or seeking a safe haven. I accept that his [Sibling 1] may have lost [the] job in Cairo but I do not accept that this is for any reason connected to his claims. If his [Relative 2] was indeed beaten to death in [another country] I do not accept that this was for any reason connected to the applicant’s claims but a sad accident.
I do not accept that the applicant, or his family, have been targeted for any harassment, threats or harm after the election of Morsi. I do not accept that his father and [Relative 1] received threats from August 2011 until October 2012. I make these findings on the reasoning above and because the applicant has been unable to explain why the Muslim Brotherhood or anyone else would continue to wish to harm the applicant or his family, given that the NDP was dissolved in April 2011 and [Mr A] had been comprehensively defeated in 2012.
On the basis of my credibility findings, I do not accept that the applicant’s father and brother disappeared in unknown circumstances in February 2013, nor that the case has been reported to the police but remains unsolved.
Even if the applicant has lost contact with his family and friends in Egypt, I do not accept that it is for reasons connected with his claims.
I do not accept that the applicant’s extended family, either those with good occupations or any others, are being targeted by acts of violence or imprisoned for no reason, nor do I accept that the articles provided establish this.
On the basis of my findings and reasoning I find that the applicant has not been charged with establishing a political party without licence or any other charge, and has not been sentenced, in absentia or otherwise, to a period of imprisonment with or without a bond. I do not accept that the applicant is banned from travel for political reasons or any other reasons nor that he is on the monitoring list for arrivals for any reason. I do not accept that his [Relative 2]’s [spouse] was jailed or has any ongoing court actions, nor that the applicant discussed any political matter with that person or anyone else. I do not accept that the situation of the applicant is analogous to Peter Greste, a journalist who had an international following and was seen to be critical of the Egyptian regime. I do not accept that the applicant has expressed a political opinion or one critical of the current regime. I do not accept his situation has any relevance to that of Mohammed Hasan. I do not accept that the applicant is of any interest or facing any charges or harm from the authorities of Egypt for any reason.
On the basis of my findings above, I find that the documents the applicant has provided are not genuine documents and do not contain correct information and I place no weight on any of these documents. I specifically find that:
·the medical report for the applicant, dated [in] September 2012,
·the reception ticket for admission to the general [hospital] for the applicant dated [in] September 2012,
·the police report dated [in] September 2012, in which the applicant and his father detail the attack against them [in] September,
·the police report dated [in] April 2013, in which the applicant’s [Sibling 1] made a report about the disappearance of his father and brother,
·the certificate issued [in] December 2014, provided to the applicant’s [Sibling 1], about the applicant stating that he is banned to travel for political reasons and is on the monitoring list for arrivals,
·the public prosecution certificate indicating the applicant [in] September 2014 established a political party without licence, indicating the applicant was sentenced in absentia [in] November 2014 to [number] years in prison with a bond of [amount] pounds, indicating the certificate was issued on the applicant’s request [in] December 2014,
·the police report dated [in] September 2012, in which the applicant’s father made a report about the seizure of his land by [people] from the Freedom party and Al Nour party,
·the reception ticket for admission to the general [hospital] for the applicant’s father dated [in] September 2012.
Are all fraudulent or false documents, manufactured to strengthen the applicant’s claims to protection, and I can place no weight on them whatsoever.
Because of this I also can place no weight on the claim that these documents were sourced from the applicant’s [Sibling 1] and extracted from the [lawyer],
Whilst I accept the Doctors report from [October] 2015, this indicates that the doctor has examined the applicant and has injuries consistent with the medical report, but does not establish the truthfulness of the prior medical report or the applicant’s claims, and I place no weight on this Doctors report in establishing the applicant’s claims. I am willing to accept the applicant was a student at [a] University and because of this has a student card. I am willing to accept the passport, identity card, a certificate and travel documents for the applicant’s [Sibling 1], showing travel to [Country 2] in November 2013, I have had regard to the character references for the applicant and his efforts to secure voluntary work, but do not accept that these at all establish his claims. I have had regard to the doctor’s report dated [in] June 2014 indicating the applicant suffers from depression which in their opinion is secondary for significant personal factors, and several prescription forms. I have had regard to the news reports supplied although these are somewhat old and general in nature and I do not accept that they establish the claims of harm against him or his family.
Findings on what will happen on return
I accept that the applicant comes from [City 1] in the delta, is a Sufi or has some Sufi practices, that his family were associated with the NDP until its dissolution, and with [Mr A] until the 2012 Presidential election, and there may have been low level harassment of the family after the election of Morsi, but that is all, and I accept that he has lost touch with family and friends. I accept that the applicant suffers depression.
I have had regard to the current situation in Egypt. The applicant claims to fear harm from the Muslim Brotherhood. As I noted to him the Brotherhood has been declared a terrorist group, banned from running for office, and hundreds of members have been sentenced to death or imprisoned, as had many Salafis,[6] and I may consider that most Muslim Brotherhood and militant Salafis were jailed or in hiding from the authorities. He responded that there was generalised violence and it was dangerous in Egypt. I noted to him that the country information indicated that the security situation, although still of some concern, had improved under Sisi and a focus on security, and that general law and order appeared only to be a continuing problem in Upper Egypt or the Sinai, and what I could see were isolated incidents of violence, not targeted against people with the applicant’s profile.[7] I do not accept his claims, without evidence and not supported by the above information, that the Muslim Brotherhood and their political allies and supporters have sleeper cells within government, nor that they would have the interest, capacity or inclination to target the applicant on return.
[6] BBC News, ‘Egypt's Muslim Brotherhood declared 'terrorist group'’ 25 December 2013, Dawn, ‘Egypt sentences 529 Morsi supporters to death,’ 24 March 2014, The Cairo Post, ‘Court bans Brotherhood members from running for elections’ 15 April 2014,
[7] DFAT Country Information Report – Egypt, 24 November 2015.
I have had regard to his claims to fear generalised violence but I do not accept this claim on the country information which indicates to me that there is only a remote chance of the applicant being harmed in generalised violence other than in Upper Egypt or the Sinai, nowhere near his home area. I do not accept that the information he has provided establishes that there is anything more than a remote chance that he will be harmed in his home area.
I have rejected that the applicant has been tried in absentia, sentenced to jail and a bond, banned from travel and on the watch list at the borders, and I find that he is of no interest to the authorities for any reason.

I have had regard to the applicant having been in Australia for a considerable time. I accept that if he returned he would return as a failed asylum seeker, but I do not accept that the authorities would be aware, or would care if they became aware. The country information indicates that many Egyptians live in Australia or other Western countries for long periods, and does not support that these people are harmed for any reason connected to this or as failed asylum seekers.[8]
[8] DFAT Country Information Report – Egypt, 24 November 2015 – p.26 – 27.
I accept that the applicant suffers from depression, and will not have much or any family support in Egypt. However, he has not claimed, and I do not accept, that he cannot readily access treatment for depression in Egypt, find work and support himself, and I find he can return to his home area and find work and afford treatment for his depression and I find he will not be harmed for any reason connected with these circumstances, nor that these circumstances will increase his chance of harm for any reason.
I have considered the applicant’s claims that I have accepted, individually and cumulatively, and I find that the applicant will not be imprisoned, killed, beaten or otherwise seriously harmed by the Egyptian government, army or any other authority in Egypt, the Muslim Brotherhood, Salafists or any other affiliates, or by anyone carrying out generalised violence, or anyone else, for reasons of his links to the NDP, political opinion, imputed political opinion, religion as a Sufi, or membership of his family, status as a failed asylum seeker or for having lived in Australia, a Western country, for a long period, or for any other reason, on return to Egypt now and in the reasonably foreseeable future.
Complementary protection
I have considered whether there are substantial grounds for me to believe that the applicant will face a real risk of significant harm on being returned to his receiving country. I have found above that there is no real chance that he will be seriously harmed on return in the reasonably foreseeable future. At hearing I asked the applicant if he feared harm for any other reason. He reiterated the claimed harm above and said that there are people who might want to kill him. I do not accept this claim, on the basis of my findings and reasoning above. I have considered the claims of harm, individually and cumulatively, and my assessment of the situation for the applicant if he returns to his home area of Egypt.
I find, for the reasons above, that the applicant does not face a real risk of significant harm in Egypt from the Egyptian government, army or any other authority in Egypt, the Muslim Brotherhood, Salafists or any other affiliates, or by anyone carrying out generalised violence, or anyone else, for reasons of his links to the NDP, political opinion, imputed political opinion, religion as a Sufi, or membership of his family, status as a failed asylum seeker or for having lived in Australia, a Western country, for a long period, or for any other reason, alone or taken cumulatively. Therefore, having regard to these findings and the findings above, both individually and cumulatively, I find that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Egypt.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
S Baker
Member

ATTACHMENT A - RELEVANT LAW
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’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2016] AATA 4835

19 December 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction