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1609946 (Refugee)

1609946 (Refugee)

Case [2023] AATA 2313 17 April 2023

Statutory Construction

Administrative Law

Immigration

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1609946 (Refugee) [2023] AATA 2313 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jimmy Morcos (MARN: 0533759)
CASE NUMBER:  1609946
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Jason Pennell
DATE:17 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal has no jurisdiction in relation to [the first applicant].
The Tribunal remits the matter for reconsideration with the direction that [the applicant] satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 April 2023 at 12.15pm

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – son’s involvement with church event – discussion of controversial issues – conversion from Islam to Christianity – leaked on the internet – subsequent threats and harassment – no evidence provided of the event – no evidence provided of internet leak – tribunal accepts applicant would be subject to social discrimination – does not amount to serious harm – economic circumstances as elderly person with limited financial resources – health issues – state of health care in Egypt – will suffer serious harm by reason of his failure to subsist – no jurisdiction for first applicant who is deceased – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss5, 36, 65, 91R(1), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
NAQJ v MIMIA [2004] FCA 946
Prashar v MIMA [2001] FCA 57

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 dependants.

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 and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Egypt, applied for the visas on 7 April 2014 and the delegate refused to grant the visas on 15 June 2016.
The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 1 July 2016 and provided the Tribunal with a copy of the delegate’s decision record.
The applicants were first invited to appear before the Tribunal on 28 August 2019. The Tribunal received a request that this hearing date be vacated due to the serious health condition of [the first applicant]. The Tribunal decided to reschedule the hearing to proceed on 29 October 2019. Due to her ongoing health concerns, [the first applicant] submitted a similar request that this date be vacated. The Tribunal considered the request and decided to reschedule the hearing for 13 February 2020. A further request to vacate resulted in this hearing date being postponed.
On 28 April 2022, the Tribunal was notified that the primary applicant[passed] away [in]…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: 1609946 (Refugee) [2023] AATA 2313
Case: [2023] AATA 2313
Decision Date: 17 April 2023

CaseChat Overview and Summary

The applicant, an Egyptian national identifying as a Coptic Christian, sought a protection visa. The dispute concerned whether the applicant would face persecution or serious harm if returned to Egypt, based on his religious beliefs and his son's involvement in a church event that discussed controversial issues, including conversion from Islam to Christianity. The applicant claimed this event was leaked onto the internet, leading to subsequent threats and harassment. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the court was whether the Tribunal erred in its assessment of the risk of serious harm to the applicant upon return to Egypt. Specifically, the court considered whether the Tribunal correctly determined that the applicant would not suffer serious harm by reason of his religion or his son's activities, and whether it erred in its assessment of the applicant's economic circumstances and health issues in Egypt. The court also had to consider the jurisdictional issue arising from the death of the first applicant.

The court found that while the Tribunal accepted the applicant would be subject to social discrimination, it did not err in concluding this did not amount to serious harm. However, the court determined that the Tribunal had erred in its assessment of the applicant's economic circumstances and health issues. It found that the applicant, as an elderly person with limited financial resources and significant health issues, would likely suffer serious harm by reason of his failure to subsist in Egypt, given the state of healthcare there. The court also noted that it had no jurisdiction to make orders concerning the first applicant, who had since passed away.

Consequently, the court remitted the decision under review to the Administrative Appeals Tribunal for redetermination according to law.

Orders