1606519 (Refugee)

1606519 (Refugee) [2017] AATA 2207 (26 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606519
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Luke Hardy
DATE:26 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2017 at 1:57pm
CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Quranist – Liberal Sunni Muslim – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 [in] April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant [is] a citizen of Egypt. He first entered Australia on a student visa [in] February 2008, around a decade ago. He spent between [July] and [September] 2010 back in Egypt and then resumed studies in Australia. He also visited Egypt [between] June and [August] 2012, and [between] September and [November] 2014, continuing to studies on his return here both times. The last student visa he was granted was due to expire [in] June 2015. He applied for a protection visa, meanwhile, [in] April 2015. He then applied unsuccessfully for a Higher Education Further Stay visa [in] June 2015, but this was refused and he sought judicial review in that matter.
The Minister’s delegate refused [the applicant’s] protection visa application [in] April 2016. [The applicant] then sought merits review of that decision.
[The applicant] appeared before the Tribunal on 20 September 2017 to give oral evidence and present arguments. He is represented by a registered migration agent who did not attend. The hearing was facilitated by an interpreter in the Arabic-English medium.
CRITERIA FOR A PROTECTION VISA
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.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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.
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
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds.
Having considered al of the evidence in this matter in its entirety, I find that another significant issue in this matter is [the applicant’s] overall credibility.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[The applicant] claimed in his protection visa application that he is a Muslim. He also claimed that in 2013 when he was in Egypt the Muslim Brotherhood (MB) was “vocal” in trying to convert people to their beliefs. He claimed he got into a brawl with some MB followers in the course of an argument about religion. He claimed he criticised some men and laughed at them for calling themselves “Protectors of Allah’s Commands”. He claimed the men were shocked when he said that he listens directly to Allah. He said he was now seeking protection in Australia because his beliefs were at odds with Egyptian society and its authorities.
[The applicant] claimed that he was from a conservative Sunni Muslim family. He claimed that when he returned to Egypt between [July] and [September] 2010 he noticed that his religious ideas had changed but not enough to cause him troubles. He claimed that when he was there between [June] and [August] 2012, he did not experience any troubles but “raised a few eyebrows” in his family and the community, presumably due to things he said or did in respect of observing local religious practice. He claimed that in 2013 he encountered many difficulties in Egypt because he was much more vocal in his views about Islam than previously. He claimed to the Department that his beliefs by this time were not Sunni but, rather, Quranist, involving a belief in direct communication with Allah instead of one that is mediated through teachers and sheikhs.
I note that the Muslim Brotherhood and its leader President Morsi were ousted from power in July 2013 and the MB was soon after banned and declared a “terrorist organisation”, with its leaders placed under arrest pending trial.[1] I also note from the certified copy of his passport, as submitted to the Department with his protection visa application form, that [the applicant] was not present in Egypt between [August] 2012 and [September] 2014, which is to say that he was evidently not in Egypt in 2013 as twice claimed in his protection visa application. The MB leader Mohamed Morsi had been sworn in as Egypt’s president on 30 June 2012, meaning that his government was only about eight weeks old when [the applicant] left Egypt, after a visit during which, he claimed, he did not experience any troubles. I note that the MB was already banned when he visited there again in September 2014.
[1] DFAT Country Information Report: Egypt, 19 May 2017
[The applicant] claimed his parents were against his leaving Egypt for Australia as they thought he had become a kaffir, or infidel. This claim suggested that the sojourn in Egypt to which he was referring was the one he made in 2014, but, as noted above, the MB was already banned before then, so it would evidently have been unable to be “vocal” or in a position to attract people to their beliefs at that time.
[The applicant’s] protection visa application form says that his wife and daughter were living at the time in [Gharbia], Egypt. He claimed fear of his family being taken away from him if he returned to Egypt in the event that he did not capitulate there to majority Sunni teachings and practice.
[The applicant] also claimed that he has been accused of being an infidel by Muslims in Australia. He went on to say that he is not actually a Quranist because his beliefs differ individually from shared Quranist beliefs because of his own interpretation of the relationship between himself and Allah.
Evidence to the delegate
For the purposes of this review, [the applicant] submitted a copy of the record of the delegate’s decision in the matter of his protection visa application. That record includes a summary of claims [the applicant] made at interview with the delegate along with reference to issues the delegate raised with him in the course of being interviewed. [The applicant] has not contested the accuracy of the summary of his evidence in that decision record.
Meanwhile, there is on file an email from [the applicant], in the matter of his unsuccessful higher education visa application, to his DIBP case officer; it is dated [in] July 2015. That email states that it is [the applicant’s] intention to complete his studies to his satisfaction and return to Egypt with a view to applying his knowledge back home. He states that his family back in Egypt is looking forward to his completion of studies and his return to Egypt. He indicates in the email that he intends, as at [July] 2015, to establish [a] business upon his intended eventual return to Alexandria in Egypt. The particulars of this email were raised with [the applicant] in his protection visa interview and, in addition, a transcript of the entire email appears in the body of the record of the delegate’s decision, which, as noted, [the applicant] then submitted to the Tribunal for the purposes of this review.
According to the record of the delegate’s decision, [the applicant] described his understanding of Quranism. He spoke generally about the need to be more tolerant of people who are unable to attend prayer in mosques due to age and infirmity. He said he supported praying at home. He said that people forget that Ramadan is about consideration for people who are too poor to feed themselves enough. He said that instead of visiting doctors when they are sick, people tend to consult sheikhs and imams in mosques. He said that interpretations of the Quran lead to “discrepancies” and that this was why he preferred to rely on his own interpretations.
[The applicant] told the delegate that his interest in Quranism had been “gradual” and that he recognised having become “very Interested” in Quranism around January or February 2015, a few months before lodging his protection visa application.
Asked how he practices Quranism, [the applicant] said he prays and reads the Quran whenever he feels like it. He said he does not believe wholeheartedly all that Quranists say, but believes “some of what they stand for.” Asked for more detail about the Quranist movement and its origins, [the applicant] said he is not a Quranist as such but, rather, a believer in the Quran unmediated by the words of prophets and sheikhs.
Asked if he spoke about his beliefs outside his family, [the applicant] said he used to chat with friends in cafés. He said he did not discuss what Quranism was about but did discuss contradictions between the Quran and some teachings of sheikhs. He said he had been chatting like this with [friends] in a [centre] on “[date or date] November 2014” when a group of youths pushed him to the ground and called him a blasphemer. He said he got up of the ground and walked away and never saw them again, because he left for Australia soon after.
[The applicant] told the delegate that in November 2014 his father and father-in-law threatened to take his wife and children away if he continued to follow Quranism. He said his father told him not to leave for Australia again. He said that after return to Australia he thought about whether he would visit Egypt again but decided in March 2015 that he would not return there.
The delegate raised with [the applicant] the subject of a “contract of sale” attached to his last student visa application indicating that he had bought an apartment in Alexandria [in] February 2015. Asked to explain this, [the applicant] said his father had bought him the apartment to encourage him to return to Egypt and settle there. He said his father had then threatened to take back the apartment if he, [the applicant], did not return to Egypt.
The delegate read to [the applicant] a number of passages from an email he had evidently sent to the Department in support of his last student visa application, specifically where it referred to his intention, as at [July] 2015, to return to Egypt and start a business in Alexandria where he had bought an apartment. According to the decision record,[the applicant] had difficulty answering the question on its point, then later said that, in July 2015, he had still been considering return to Egypt in the event of conditions improving for him there.
The delegate found that [the applicant’s] understanding of Quranism was vague and generalised. The delegate gave some weight to [the applicant’s] having stated that he was not entirely a Quranist. The delegate did not accept that [the applicant] had been threatened by a group of MB supporters as claimed. The delegate did not accept that [the applicant’s] father and father-in-law had threatened to take away his wife and children. The delegate gave some weight to the [July] 2015 letter to the Department and found that that [the applicant] had not genuinely been fearful of returning to Egypt in 2015 as claimed. The delegate gave some weight to the ease and legality of [the applicant’s] departure from Egypt.
[The applicant] provided letters to the delegate from some apparent acquaintances saying that they had noticed a change in his religious beliefs over the years and claiming that he had advised them to consider rethinking their previous approach to Islamic teaching.
[The applicant] also provided a photocopy of a purported [February] 2015 contract of transfer of a property in Alexandria from his father to himself.
Evidence to the Tribunal
[The applicant] told me that he used to live with his parents, his brother, his wife and their children in his family’s home in [Egypt]. He said his wife and children still live there. He said he has an apartment in Alexandria “given” to him by his father in 2015. I asked him why his father would have given him an apartment after he purportedly disobeyed him and return to study in Australia; in reply, he said it was a peace offering. I put to him that this peaceful approach seemed at odds with claims about the threats made by his father, and he said his father tried every method to make him change his religious thinking. He said his father had even threatened to take his wife and children away. I put to him that this seemed an odd threat given that his wife and children already resided for many years with his parents. I put to him that on the evidence he did not seem fearful for his wife and children living in the house of his parents; he had left them there on numerous occasions when he departed for Australia. In reply, [the applicant] said, “Where can they go?” I put to him that they might go anywhere but for the present, at least, they just appeared to be living with his father as usual. In this way, I disclosed to him that on the evidence before me I might be sceptical about his claims regarding his father’s attitude towards him.
[The applicant] claimed that his wife’s religious beliefs are the same as his, but he did not suggest this was the subject of any conflict between her and anyone else in Egypt.
I asked [the applicant] when he first considered himself a Quranist and he said it had been a gradual process leading up to 2015 when he acknowledged that he was “fully Quranist”. He displayed to me some knowledge of Egyptian Quranists including Ahmed Subdy Mansour who lives in exile and whose views he had found in You Tube videos. He said he was “still building [his] thoughts and ideas” over all the years he resided here and holidayed in Egypt. He said he was first introduced to Quranist thinking in 2012. He went on to say that he was sitting with friends in a [centre] discussing religion when he made a comment about the ancient practice of sacrificing animals, whereupon some people who overheard him pushed him to the ground.
I invited [the applicant] to explain what he meant when he had said to the Department, and more directly to the delegate, that he was not a Quranist, did not share all of their beliefs and was not involved with any Quranist networks. In response he said he did not feel the need to be part of a group or network spreading the Quranist message. He said he just believes what he believes: “Just me.” Essentially, he was saying that his beliefs are personal and that he was not, as it were, evangelical. I then asked [the applicant] to explain, the testimony of his friends in [Australia] who described his having guided then to change his thinking, particularly since he was saying to me that he was not interested in being part of any network or movement. In response, he said he only tells his friends in the course of their one-on-one conversations, if the topic of the Quran arises, to make up their own minds and think for themselves. He said it is not his job or mission to preach. In this way he differentiated his interests from those of people like Mansour who had sought to build a movement in Egypt.
I then asked [the applicant] how his own approach to his beliefs would get him into trouble in Egypt. In response, he said Egypt is a Sunni society that won’t accept him saying anything out of the mainstream. This however, does not appear to have been what happened in the instance of the chat he had been having with friends at [the] [centre]: they had not attacked him for being out of the Sunni mainstream; the people who he alleged were his attackers were a different group who overheard him and he described them as extremists and members of the banned MB.
I asked [the applicant] to state clearly whether he is a Quranist or simply a liberal Muslim, and he said he is “only a Muslim who believes in the Quran.” I then invited [the applicant] to comment on observations in DFAT’s Country Information Report: Egypt[2], to the effect that Quranists may tend to meet resistance in more conservative, rural parts of Egypt, but not in cities like Cairo and Alexandria. In reply, he said that in the incident at the [centre] in (mainly rural) Gharbia he had not even declared himself a Quranist. According to his evidence to the Department, however, he had fallen into an argument with MB members about whether anyone could mediate between Allah and himself, an issue that, he claimed, implied to them that he held Quranist views and caused them to assault him on the occasion. In any event, he did not rebut the position put to him about such treatment being rare in Egypt’s more urban environments. He went on to cite an instance in which a person in one of Egypt’s cities had been killed for preaching Shi’a Islam, but nothing he said about this person suggested that his own situation was similar, because he described himself as not being a preacher and he certainly was not in the business of persuading people to desert Sunni Islam for the Shi’a stream.
[2] Ibid.

[The applicant] confirmed that he was now [age] years old. He had repeatedly been allowed to defer his military service, which was compulsory for Egyptian males up to the age of 30[3], but in his case his last deferral had only been up to the age of [age]. He said he last left Egypt at [age] and had not obtained a further deferral. He told me he has no conscientious objection to military service and, when we discussed the generally-applicable condition for people in his case to have their obligation fully discharged in the military court in Egypt, he said this was not a problem for him, his problem being what would happen to him if he discussed his beliefs with people. He then contradicted something he had said earlier in the hearing, telling me now that all Quranists have a vocation to share their views with people and that following this vocation would put him in danger in Egypt, as it had done to Mansour at some time in the past when he chose to continue preaching from exile. What [the applicant] seemed to be contradicting here was his having defined himself as not being an actual Quranist and his having stated that his main concern was his own relationship with Allah. He had previously said that he simply encouraged friends on a one-on-one basis, when the topic arose, to trust their own understanding of the Quran.
[3] See CIA World Factbook:
Generally [the applicant] claim about facing risk of serious harm from the mainstream Sunni population in Egypt struck me as being vague and contradictory.
Findings in relation to s.36(2)(a) of the Act
I accept that [the applicant] is a Muslim. I am prepared to accept on the evidence before me that he is a liberal Muslim. On the independent evidence before me, I am not satisfied that liberal Muslims, particularly in urban environments like Alexandria, where [the applicant] owns an apartment, face a real chance of persecution.
Whereas [the applicant] claims his family is a conservative Sunni family, I do not accept on the evidence before me that it is to any potentially significant extent conservative. Also, on the basis of the evidence [the applicant] has provided about his family composition and collocation, I do not accept that there has been a threat, or that there is a risk, that his wife and children would in any circumstance be taken away from him. I find that this is an unreliable claim.
I am not satisfied, in the claimed circumstances as to the credibility of [the applicant’s] explanation as to why his father gave him the Alexandria apartment.
I do not accept on the evidence before me that [the applicant’s] father has tried to harm him, or threatened to do so, or demanded that he not return to Australia to continue his studies or exposure to unacceptable thinking here. I give some weight in this matter to [the applicant’s] lack of reliability with regard to his claims about his father. Accordingly I do not accept that his father-in-law has threatened him either.
[The applicant] has claimed to me that he was “fully Quranist” by February 2015; he has also claimed that he is not really a Quranist and that he is merely a Muslim who believes in the Quran. This last claim is arguably what all believing Muslims would say about themselves. In the course of giving his evidence, [the applicant] has tended make the distinction between himself and mainstream Sunni Muslims in Egypt virtually meaningless. On [the applicant’s] vague and contradictory evidence, I do not accept that he is a Quranist or that he would be mistaken for one. On the evidence before me, I find that he is a liberal, perhaps more independently-thinking, liberal Sunni Muslim. On the independent evidence before me, I am not satisfied that he would face a real chance of persecution in Egypt for reasons of being a liberal Sunni Muslim.
[The applicant] claims that the episode at the [centre] is an example to the effect that he does face a real chance of persecution in Egypt for expressing his views about the Quran and about Islamic traditions. His claims as to the details of this incident have not been entirely consistent over time. Elsewhere I have rejected his claims on the basis of their inconsistency. Even if I accept that that episode occurred, say in 2014 in the [centre], I do not agree with that position, for according to [the applicant] he faced no opposition from the Sunni Muslim friends with whom he was intentionally discussing the topic he was discussing and he was evidently not afraid to debate with them; he only faced adversity, and apparently only on this one isolated occasion, from a group that was not invited into the discussion and that he describes as having been on the more extremist side of religious debate in Egypt. On the evidence before me I do not accept that there is a real chance that [the applicant] would encounter such people or such treatment in the event of returning to Egypt and living his life the way he wants to live it.
I have taken into account the letters of support from [the applicant’s] friends, but they too are quite vague and, overall, I give them very little weight in this matter, particularly since [the applicant’s] own description of the circumstances to which they allude is so inconsistent and vague. Similarly, I give very little weight in this matter to the anecdotal examples of how other people have been treated in other circumstances, such as when one was selling alcohol and another was trying to preach Shi’a Islam.
To sum up, I do not accept that [the applicant] is a Quranist or that he holds or expresses beliefs that would put him at potentially significant odds with Egyptian society and authorities as claimed. I do not accept that he has an acrimonious relationship with parents or in-laws over his religious stance. I do not accept that family members or anyone else has threatened him. I find that the account of the incident with the alleged MB members is inconsistent and unreliable but even if I accept it to be true, I do not accept that it is indicative of a real chance of [the applicant] being persecuted in Egypt in the reasonably foreseeable future. I find on the consideration of his evidence and of the material in the DFAT Country Information Report: Egypt that he can return to live with his family and practice his religion freely in Gharbia, and also do the same in his apartment in Alexandria should he prefer.
In finding that [the applicant] does not have a genuine fear of persecution in Egypt, I have not relied on the contents of the email transcribed into the decision record that [the applicant] submitted to me in finding that he does not have genuine fear of persecution in Egypt, because he said what he said in that email in another context. To me, he said that at the time he genuinely hoped he would be able to return to Egypt one day if it became safe for him to express his religious views and, on the basis of other evidence presented throughout his protection visa application I find that he is indeed able to return and live his interpretation of Islam without facing a real chance of persecution in the reasonably foreseeable future.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of persecution in Egypt in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear of persecution is not well founded. He is not a refugee
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person who is found not to meet the refugee criterion in s.36(2)(a) 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.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Essentially, [the applicant’s] complementary protection claims rely on the same facts as his refugee claims. Those claims generally failed due to a lack of credibility and/or not meeting the “real chance” test. In view of my findings of fact above, and in view of the “real risk” and the “real chance” tests being essentially the same, [the applicant’s] refugee claims can no more succeed as complementary protection claims.
Having considered all of [the applicant’s] claims in their entirety, I am not satisfied, on the evidence overall, that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk he will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2207

26 October 2017

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Immigration

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