1608377 (Refugee)

[2019] AATA 1115

1608377 (Refugee) [2019] AATA 1115 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608377

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Christopher Smolicz

DATE:17 January 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 17 January 2019 at 2:06pm

CATCHWORDS

REFUGEE – protection visa – Egypt – Muslim Brotherhood supporter – Sunni Muslim – social media post – anti-government profile – failed asylum seeker – previous application for spousal visa refused – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Egypt, applied for the visa on 10 April 2014 and the delegate refused to grant the visa on 6 May 2016.

3. The applicant appeared before the Tribunal on 6 November 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Issue

9. The issue raised by the applicant in this matter is whether he meets the refugee criterion or come within Australia’s complementary protection obligations because:

   ·     he is a supporter of the Muslim Brotherhood and is opposed to the Abdel Fattah el-Sisi (Sisi) government;

   ·     he will be returning to Egypt as a failed asylum seeker.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant is a [age] year old male from Cairo, Egypt. He is a Sunni Muslim. He has attained a [qualification] and worked [in an occupation] in Egypt.

12. In 2005 the applicant was [approved] to undertake [study] in Australia. The applicant arrived in Australia [in] July 2005 as the holder of a Student [visa]. The applicant was granted two further student visas in Australia to progress his study towards a [qualification]. He ceased studying in July 2010 and his last student visa expired on 18 September 2010.

13. [In] August 2010 the applicant married [Ms A], an Australian citizen.

14. On 8 September 2010 the applicant lodged an application for a Partner (subclass 820) visa on the basis of his spousal relationship with his wife.

15. On 27 September 2011 a delegate of the Minister refused the visa application, as their relationship was found to be non-genuine. The Migration Review Tribunal affirmed the delegate’s decision. The applicant subsequently unsuccessfully requested the Minister to exercise his public interest power to intervene.

    Summary of claims

16. The applicant declared when Hosni Mubarak was ousted in 2011, he thought that he had finally regained his long-supressed freedom of expression. He was especially encouraged by the election of Morsi to the presidency and believed that democracy had replaced autocracy in Egypt. However, one year into Morsi’s presidency, the president was removed by the military. Supporters of Morsi were killed in mass street protests. He claims that even the mentioning of the Rabaa al-Adawiya Square protests would get people into trouble in Egypt.

17. The applicant claims that the judicial system has been politicised and the Muslim Brotherhood has been blamed for the violence in Egypt. State of emergency was reinstated and people have been turned against each other.

18. The applicant declared that he was not a member of the Muslim Brotherhood but described himself as a supporter and sympathiser of the Muslim Brotherhood. He believes in democracy and opposes a religious or military regime. He has expressed such viewpoints to his friends, ex-colleagues and family.

19. He claims that in 2014, he called a talkback radio station in Egypt to condemn the host, who toed the official line and stated that those who did not like Egypt should leave. His call was cut off before he went on air and he stopped listening to the program.

20. The applicant claims that he also shared an article on [social media]. The article accused the officials of the Sisi government of [details deleted]. He had to remove the article from his [social media] page because his brother told him that it might endanger his family in Egypt.

21. The applicant has told his brother about his protection visa application. He believes that other members of his family have become aware of his action of seeking asylum, as well as a cousin who is [an official] and might have taken issue with him, as he no longer answers the applicant’s telephone calls.

22. The applicant fears, if he returns to Egypt, he will be imprisoned by the authorities due to his actions of seeking asylum in Australia and his sympathy towards the Morsi government and the Muslim Brotherhood.  As he fears harm from the authorities, nowhere is safe for him in Egypt.

    Country information

23. In assessing the applicant’s claims the Tribunal has had regard to the following country information prepared the DFAT:

    Muslim Brotherhood

    3.39 The Muslim Brotherhood (‘the Brotherhood’) is an organisation founded in 1928 as an Islamist religious, political and social movement. The Brotherhood has traditionally represented the primary political opposition to Egypt’s military rulers, despite being prevented for the most part from participating in formal politics and being subjected to intermittent (and often violent) crackdowns.

    3.40 Although the Brotherhood did not play a significant role in the 2011 Revolution, it took a more assertive role afterwards. In the first parliamentary elections after Mubarak’s overthrow, the Brotherhood’s newly formed Freedom and Justice Party won almost half the seats. Leading Brotherhood member Mohammed Morsi was elected President in June 2012. Since Morsi’s removal from office by military intervention in July 2013, and the violent dispersal of two large protest camps of Brotherhood supporters in August 2013, Egypt’s security apparatus and courts have carried out a significant crackdown on the Brotherhood’s members and activities.

    3.41 In December 2013, the Egyptian Interim Cabinet declared the Brotherhood a ‘terrorist organisation’ under Article 86 of the Egyptian Criminal Code. According to Article 86, membership of a designated terrorist group may incur penalties of up to five years’ imprisonment. Article 86 also criminalises the distribution of materials, in writing or in speech, pertaining to a proscribed organisation or in service of its objectives. DFAT understands that most, if not all, NGOs affiliated to the Brotherhood have either been shut down, had their assets seized, and/or had their board replaced with government appointees. Tens of thousands of Brotherhood members have been arrested and detained since July 2013 (see also ‘Detention and Prison’), and courts throughout the country have handed down a series of harsh sentences (including the death penalty) in mass trials of those charged with participating in violent protests or riots following the military takeover (see also ‘Death Penalty’).

    3.42 The key Brotherhood senior leadership has been in detention since the July 2013 military intervention, and much of the leadership has fragmented. According to his family, Morsi has been held in solitary confinement since being overthrown in 2013. In October 2016, a court upheld a 20-year prison sentence against Morsi for his role in the killing of protesters outside the presidential palace in Cairo in December 2012, and he is currently serving three other lengthy prison sentences, which are under appeal. However, a death sentence imposed earlier on Morsi was overturned in November 2016. In May 2016, the Brotherhood’s Supreme Guide Mohammed Badie was sentenced along with 35 others to life in prison over violent clashes in 2013 following the military intervention. Badie has previously had two death sentences overturned, with retrials ordered in both cases.

    3.43 DFAT understands that although large-scale arrests of Brotherhood members and supporters continue to occur in the context of counter-terrorism operations, they are no longer being targeted purely based on their affiliation to the organisation. It is generally estimated that up to a quarter of Egyptians still sympathise with the Brotherhood’s goals to some degree, although the number of active members and supporters would be considerably less than this.

    3.44 DFAT assesses that Muslim Brotherhood leadership figures and members who continue to pursue political activities actively either within or outside the party structure are highly likely to be arrested and prosecuted. Ordinary inactive members, party supporters and those with family links to members face a lower risk of being targeted for arrest, but may be subject to arbitrary arrest during wider security actions. They are likely to come under the close attention of authorities and be subject to surveillance and monitoring of their activities.

    ….

    Conditions for Returnees

    5.32 The International Organization for Migration (IOM) runs a program in Egypt that assists voluntary returnees, in cooperation with the country from which they are returning. Egyptian authorities cooperate with the IOM in these arrangements. DFAT assesses that people who return to Egypt after several years’ absence will not face any adverse attention on their return due to their absence. Likewise, DFAT assesses that failed asylum seekers will not face adverse attention because of their failed application for asylum when they return to Egypt.

    5.33 Egypt accepts involuntary returnees. Egyptian officials generally pay little regard to failed asylum seekers upon their return to the country, although it is possible that some individuals will be questioned upon entry, or will have their entry delayed. Many thousands of Egyptians enter and leave the country every day. Egyptians who out-stay their work or tourist visas in other countries are regularly returned to Egypt with no attention paid to them by authorities. DFAT is not aware of failed asylum seekers being reported by airport authorities to the Ministry of the Interior or any of the security services beyond the normal processes for returning Egyptian nationals.

    5.34 DFAT assesses that Egyptian embassies or other officials usually take note of political activities conducted by Egyptians abroad. However, only particularly high-profile cases (i.e. those that gain media notoriety in Egypt) are generally of interest to Egyptian authorities. Lower profile political activists may be questioned on return to Egypt, but are unlikely to be detained or otherwise mistreated.[1]

    Tribunal hearing

    [1] DFAT, Country Information Report – Egypt (19 May 2017)

24. The applicant said he travelled to Australia in July 2005 to study. He did not fear any harm in Egypt prior to arriving in Australia. He has never had any trouble with the Egyptian authorities. He has never been arrested or detained. He was not a member of any political party in Egypt.

25. The Tribunal questioned the applicant about his association with the Muslim Brotherhood. The applicant said that he is not a member of the Muslim Brotherhood but is a supporter. He said that the Muslim Brotherhood is no longer a religious group but a legitimate political party.

26. The applicant spoke passionately about his support for the Muslim Brotherhood. He supports them because they have done a lot good for ordinary people; for example, they operate medical clinics for the poor. He was very excited during the presidential elections held in June 2012 which resulted in the election of Mohamed Morsi.

27. The applicant said that Egypt had freedom of speech under Morsi and he is not a supporter of Abdel Fattah el-Sisi who is a former head of the Egyptian army. He claims Egypt is now ruled by the military, there is no freedom of speech and everything is monitored by the authorities.

28. The Tribunal observed that the applicant had been in Australia since July 2005 and asked how he was able to support Morsi. The applicant said that he was active on social media and all his friends in Egypt and Australia knew his political views. He claims the Egyptian authorities are able to monitor his social media activity from Australia. He claims his friends have warned him his views will jeopardise the safety of his family and put his life in danger. The Tribunal asked the applicant if he could be more specific about when he was warned and what views was he expressing at the time. The applicant said that it occurred on many occasions in response to his online posts. The applicant said that his main purpose was to teach people that they were deceived.

29. The Tribunal observed that that country information confirms Coptic Christians continue to face official and societal discrimination and that this has been prevalent for decades. In its most recent country report, DFAT states that as an overwhelming Sunni Muslim country, Egyptian law and long standing practices are generally designed to safeguard the Muslim majority.[2]

    [2] DFAT, Country Information Report – Egypt (19 May 2017) [3.31]

30. The applicant said that he has sympathy for all minority groups in Egypt and believes in religious tolerance. The applicant said that his wife was Christian and he went to an Orthodox Christian school and has Christian friends in Egypt.

31. The Tribunal noted that the Muslim Brotherhood have been blamed for attacking Christians and had been declared a terrorist organisation. The applicant said that much of the reporting was ‘fake’. He said that the Sisi government was behind many of the attacks and wanted to blame the Muslim Brotherhood for its own political advantage.

32. The applicant said he fears that people in Egypt have found out about his protection visa application. The Tribunal observed that his application is confidential. The applicant said that it was his own fault. He said that he was feeling depressed and told his [brother] about this protection visa application over the telephone. He fears that this aunt was present and heard the conversation and has told other relatives. He fears his brother told a cousin with whom he does not have a good relationship. The applicant said that anyone who applies for protection is seen as putting the life of his family in danger such as Muslims who have fled to Turkey and to Qatar seeking protection.

33. The Tribunal asked the applicant who he feared would cause him harm if he was to return to Egypt. The applicant said he feared the ‘regime’. He said that he did not know what would happen to him.

34. The applicant confirmed that he was still married to [Ms A] and they continue to live together.  The Tribunal was provided with a letter from a [medical professional at a medical centre] confirming that [Ms A] is diagnosed with [a Medical condition 1 and Medical condition 2]. She has limited social support and the applicant is her main carer. [Ms A] told to the Tribunal that she has suffered abuse as a child and that the applicant helps her deal with the trauma that she has experienced as a child.

35. The Tribunal observed that [Ms A] provided emotional support to the applicant throughout the hearing. The Tribunal explained to [Ms A] that it was sympathetic to her situation but the focus of the hearing was the applicant’s protection visa application.

    Findings

36. The Tribunal finds that the applicant gave evidence which was largely consistent with his protection visa application.

37. The Tribunal accepts that the applicant is a national of Egypt and assessed his claims against Egypt as the receiving country and country of reference.

38. The Tribunal finds that the applicant is a Sunni Muslim born in Egypt. He is not a member of any religious or ethnic minority group in Egypt. As stated above, DFAT states that that as an overwhelming Sunni Muslim country, Egyptian law and long standing practices are generally designed to safeguard the Muslim majority.[3] The Tribunal finds that there is no real chance the applicant would face persecution in Egypt because of his Muslim religion.

    [3] DFAT, Country Information Report – Egypt (19 May 2017) [3.31]

39. The Tribunal accepts that the applicant is a supporter of the Muslim Brotherhood which he considers to be a legitimate political party. The Tribunal finds, however, that the applicant does not hold extremist views and accepts that he believes in religious tolerance.

40. As detailed above, DFAT assesses that Muslim Brotherhood leadership figures and members who continue to pursue political activities actively are highly likely to be arrested and prosecuted. The Tribunal finds that the applicant does come within this profile.

41. When questioned about who he fears will cause him harm in Egypt, the applicant said he fears the ‘regime’ in Egypt and was unable to provide further information.

42. In assessing the applicant’s profile in Egypt, the Tribunal finds that the applicant has never had any trouble with the Egyptian authorities. He has never been arrested or detained. He was not a member of any political party in Egypt.

1. The Tribunal finds that the applicant has been living in Australia since July 2005 and therefore has avoided all of the political unrest which has occurred in Egypt since the 2011 Egyptian Revolution. He has not taken part in any protest activity or voted in the June 2012 and May 2014 presidential elections.  He has not experienced any persecution in Egypt prior to arriving in Australia and was able to maintain a successful career in Egypt and was motivated to travel to Australia to undertake further study.

2. The Tribunal accepts that the applicant is an educated person who holds political views which he has expressed on social media in the past. Having regard to the applicant’s profile as an ordinary supporter of the Muslim Brotherhood, who is not a member of any political party, the Tribunal does not accept that his political views alone would impute him with an anti-government profile.

3. The Tribunal finds that there is no real chance that the applicant as an ordinary supporter of the Muslim Brotherhood would face serious harm if he was to return to Egypt in the reasonably foreseeable future. The Tribunal finds that his fear of persecution because of his actual or imputed political opinion is not well founded.

4. He fears his brother told a cousin with whom he does not have a good relationship that he has applied for a protection visa. The Tribunal found this claim vague and lacking in detail. The applicant applied for the protection visa in April 2014. The applicant was refused in May 2016. He has not received any threats from his family in Egypt during this time. It is mere speculation that his cousin has become aware that he has applied for a protection visa and will seek to cause him harm if he returns to Egypt in the foreseeable future. The Tribunal is not satisfied that there is a real chance that his family members will seek to cause him serious harm because they have become aware that he has applied for a protection visa since he arrived in Australia.

5. In conclusion, the Tribunal finds that the applicant has applied for a protection visa because his partner visa was refused by the Department of Immigration in September 2011 and he wants to remain in Australia with his wife who is an Australian citizen.

6. 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).

   Complementary protection

7. The Tribunal has also considered the application of s.36(2)(aa) to the applicant's circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Egypt, there is a real risk he will suffer significant harm.

8. As detailed above the Tribunal finds that the applicant is an ordinary supporter of the Muslim Brotherhood. He is not a religious extremist. He is not a member of any political party. He has never come to the adverse attention of the authorities in Egypt. He arrived in Australia in July 2005 to undertake further study and not because he was escaping persecution.

9. Having regard to the applicant’s profile and personal circumstances the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that he will suffer significant harm because he is a supporter of the Muslim Brotherhood or because his family have found out he has applied for a protection visa or because he has expressed his political views on social media and may continue to do so in the future.

10. For reasons given above, the Tribunal is not satisfied 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 he will suffer significant harm.  The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).

11. 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).

12. 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 criteria in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Christopher Smolicz
    Member