1618121 (Refugee)

1618121 (Refugee) [2020] AATA 644 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618121
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:23 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 January 2020 at 10:44am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Christianity – threats of harm, kidnap, forced conversion or death to applicant and relatives by Muslim individuals and groups, including brother-in-law – workplace discrimination – credibility – inconsistent evidence –voluntary return after previous visit to Australia – delay in applying for protection – various other visa applications – responsibilities as sister’s carer – passage of time since claimed incidents – no harm to relatives still in Egypt since applicant came to Australia – country information – status of Christians in Egypt – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 14 September 2015.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he gained [a subject] diploma in [year] and from 1993-96 worked in a company called [Employer 1], then from 2005 (after visiting his sister in Australia from March to June 2004) he worked in more than one company as [an Occupation 1]. From June until November 2012 he worked in [Employer 2] company until he was fired for being Christian.
His sister [Ms A]’s husband converted to Islam and [Ms A] and the children came to Australia with the help of Bishop [B]. The husband threatened the applicant and their family that unless his daughter [Ms C] was returned from Australia they would be in danger. The rest of the family tried to come but the church neglected the paperwork so the danger occurred. His cousin’s daughter was kidnapped to be converted to Islam and a cousin’s son [Mr D] was also forcibly converted. His cousin’s wife was also forcibly converted – he and his family face danger from all sides.
Their neighbours in the street are Salafists from the Muslim Brotherhood (MB) and they threatened him. He went to the police but the police protected them because the MB were Muslim. He was without work for nearly a year because he was Christian.
AAT Hearing
The applicant was asked about his supporters in the room and was advised that they didn’t intend to give evidence unless required – they were sworn in just in case. The applicant said that the hearing would be private and confidential and he was told this previously, however in his refusal letter he was confused with another person called [Mr E] and his details could have leaked into [Mr E]’s file and this person may be a member of the Muslim Brotherhood. He was asked if he had checked with the Department to see whether any of his details had gone into the other person’s file.
He said he didn’t know the legal issues and was pretty sure that if he asked they would say they didn’t know. Again asked if he had enquired he said he didn’t know he could ask. It was put to him that he didn’t need to know the legal system and even if he didn’t then he had a lawyer. If he had such a concern then it was reasonable to believe that he would have enquired, but if he hadn’t done anything to find out then it didn’t appear he was very concerned about it. He claimed that he lived in panic and fear once he knew about the identity details. It was again put to him that neither he, his family or his legal firm had made any enquiries then it didn’t appear to the Tribunal that he appeared to be particularly concerned about the issue.
He said that he didn’t even trust the Australian government in the same way he didn’t trust the Egyptian government – he was asked why he was applying for protection from a government that he claimed he didn’t trust. He simply said he believed that if the Egyptian whose name was on his file was seeking protection from the Egyptian government then he must be from the Muslim Brotherhood. He was again told him that if he had a concern about his personal information security he needed to take it up with the Department and he needed to focus on his claim before the Tribunal.
He claimed that if he returned to Egypt his life and family’s life was in danger and his son faced the risk of being kidnapped. It was put to him that the Tribunal only looked at his claim as he was the only one in Australia. He then said that his life was in danger from his former brother-in-law because he had converted to Islam and his wife and daughter came to Australia and sought protection. The applicant was threatened because his former brother-in-law wanted his daughter back. A lot of his family was kidnapped and the applicant claimed that he would be killed.
He also had a problem with a Muslim from a group that had kidnapped his paternal cousin. He had met his cousin and met and began following her. He went to dissuade the person from following his cousin and then this man sent a group of men to near his house and some members of their family had been kidnapped and he was afraid he would be kidnapped as he was the first to confront him and was his neighbour. He again asked that he not be separated from his family in considering his claim and it was put to him that the Tribunal was only looking at his claim as he was in Australia.
Regarding his former brother-in-law, this person wanted to bring his daughter back and convert her to Islam. This began from the time of his conversion but got worse when he was surrounded by a big Muslim group and after the revolution. He converted in 2001 and his wife came to Australia that year or the next. He claimed he could not recall dates well and the previous person handling his case made a mistake with dates. The daughter was now [age] or [age] but he wasn’t sure. She was an Australian citizen who was married and living in Australia to another Australian citizen.
Asked when he believed he would be killed by the brother-in-law he claimed that it was after the Islamic revolution and when he was hanging around with a Muslim Brotherhood (MB) group and came to his house telling him that he wanted his daughter back. He never told him the daughter was in Australia. The threats got much worse from 2013 after the revolution – prior to this the threats weren’t that bad. He used to turn up with a large group after 2013.
Family members had been kidnapped but as far as he was concerned before 2013 he couldn’t really recall the dates but the threats took the form of verbal threats to kidnap the applicant’s son. His son was born in [year]. Before 2010 the brother-in-law used to go away a lot so he didn’t know when he was threatened specifically but would verbally threaten him personally. He would tell him that other members of the applicant’s family had been kidnapped and he would be next. He couldn’t really specify what year the threats were made or when they began.
Before 2010 he would come up to the applicant while the applicant was at his own house and the brother-in-law came to pick up his daughter. He claimed he had a problem with dates because of his memory – it was put to him that there was no medical evidence that he had a poor memory and the Tribunal assumed that he would have prepared himself prior to coming to the Tribunal.
Asked if there were any kidnapping attempts on his son between 2010 and when he left Egypt, he claimed that he was moving houses all the time between houses of his wife’s relatives so no attempt was made. Asked what form the serious harm threat in 2013 took, he claimed that the brother-in-law came to his home with a Muslim Brotherhood group and said he wanted his daughter there to convert or they will attend to him and his son.
Asked how they found him in his house if he had been moving between houses from 2010, he said that he came back to his house every now and then so it wasn’t taken over. He was alone. On one occasion after he left his wife went to the house with the children. Asked if the brother-in-law went to the Egyptian courts to get custody of his daughter he claimed he didn’t know. It was put to the applicant that this would have been the easiest thing to do, he said he may or may not have done it but was unaware. It was put to him that if he had gone to court he could have gotten the government engaged – he said that perhaps the government had told him his daughter had left the country.
Asked why he would still want to kill the applicant 18 years after his daughter had left, his daughter was now [age] an Australian citizen and married to an Australian. The person hadn’t turned up on his doorstep until 12 years after his daughter had left, and he hadn’t gone to court at all. This was hard to believe. He claimed that three members of his family had been kidnapped. The Tribunal said it was interested in the applicant’s claim – the brother-in-law had found the applicant on his own and had his MB mates with him yet he never killed, kidnapped or even assaulted him three years after telling him that he wanted his daughter back.
He claimed that the applicant was the only way to get the daughter back so if he had killed the applicant, the brother-in-law couldn’t get his daughter back. The MB though had no respect for the government. He was told about s 424AA and it was put to him that during his DIBP interview he said that the threat from his brother-in-law came from a letter yet he had said it was from a personal visit with MB members in tow. This inconsistency could call into question his credibility. He claimed that he never said it was a letter and could be a problem with the interpreting.
Regarding the claim that a Muslim group had threatened to kidnap him because he stood up for his cousin, he claimed that he couldn’t recall the date, and didn’t want to estimate the date but it could be around 2001/02. The cousin had a Muslim friend who wanted to introduce the cousin to a Muslim friend but she didn’t want to. He was persistent. The applicant heard about it and knew the Muslim guy from around the area. The Muslim guy asked her parents for her hand in marriage but they refused and she disappeared after a period of time.
He got into a fight with this person but the person’s friends came to the applicant’s brother and told him to warn the applicant off addressing the issue. Asked if anything happened to the applicant because of the issue other than his brother being asked to pass on a warning he said that he didn’t get involved. Asked why he thought something would happen nearly 20 years later given he lived there for another 13 years without incident and had been to Australia once and returned to Egypt, he said that Christians are persecuted and three members of his family had been kidnapped and his son and others were under threat. Churches were being bombed.
It was put to him that the Tribunal needed to assess the applicant’s credibility as his claims all relied on his oral evidence. The Tribunal wanted to focus on his claims so it could test his evidence – if his claims weren’t believed in relation to himself, then it wasn’t likely those relating to his family would be.
He agreed he had been to Australia in 2003/04 and returned to Egypt. He was asked if his brother-in-law had threatened him since 2001/02 and this other Muslim group had done so around the same time he didn’t apply for protection in Australia when he came in 2003/04, he claimed that his fear wasn’t great then but was big after the Muslim revolution.
Regarding the alleged kidnap of his cousin [Ms F] he claimed it was in 2001/02 but his adviser said in the submission that it occurred in 2012. The delegate said his brother had been in Australia since 2009 but the applicant had given incorrect information. He was asked if he had given incorrect information and he agreed that he had but said his previous adviser had told him to put in a false date and he was desperate so he gave this information knowing it was false. The Tribunal said it was concerned what this meant about his credibility and he only owned up to it when the delegate had pointed out the inconsistency.
Asked about a claim that he may be fired because he is Christian, he said that as Christians they are persecuted wherever they work. He was working for a company ([Employer 3]) but he left it around 2002 because the wages were dropping. He left the company but they asked him back around six months later on a better wage. He was told he would come back as a supervisor but was told he would be looking after a person called [Mr G] who he had worked with before. He had to train him up but he always felt the intention was to get a Muslim to become the supervisor. They often talked about religion at breaks and he believes it was because of this he was fired.
After he trained [Mr G] he was asked t move to another department and so [Mr G] could take over the current department. The Muslim supervisor looked fanatic and he believed it was obvious they wanted to remove him. Another engineer called [Mr H] asked to see him and they said that [Mr G] wanted to learn from [Mr H] and not the applicant and it became obvious that it was about religion.
[Mr I] the manager sorted this out and the applicant remained with [Mr G] to teach him. Then he was told he would be moved and demoted to an assistant and he was given notice to leave as a result. He couldn’t remember when this was but he moved to another company called [Employer 4]. Asked how many companies he worked for after this he said that he worked for another two companies ([Employer 5] and [Employer 2]). He couldn’t remember how long he worked for each of these but could do it post-hearing. Asked if he had been asked to do this previously, he said that it had been requested and had done his best to provide one. The adviser said she had checked with the previous migration agent’s records but couldn’t find a copy of such a list.
He then started up his own business but they didn’t have a name. It was a company started by him and his brother but there was no name. They made [products] but they had no experience and they stopped working. They began around 2004 and it lasted for about a year. In total he believed he was fired from two companies because of his religion. The first and another company he resigned from because of the way they treated him but he couldn’t recall what year.
Everywhere he goes to there are always religious issues. Asked what he did after he finished at [Employer 2], he claimed that he went to [Employer 5] which he thought was the last one. Under s 424AA it was also put to him that he had had various visa applications over several years and when he was asked his employment, in a 2007 application he said he was employed by [Employer 6] for the past five and a half years which would have taken him from 2001-2007. No other companies were mentioned.
In a 2012 visa application he claimed that he worked in a company making [products] and in a 2013 [visa] application he claimed that he worked as [an Occupation 2] and in a 2014 visa extension application he said he had been employed since 1999 in state companies. In his 2015 protection visa application he claimed that he had worked in various companies from 2005 to 2012 and then from June to November 2012 he worked at [Employer 2] and was then unemployed until he came to Australia. There was a range of inconsistencies between the employment history he had given which raised questions about the truthfulness of his employment history and his claim to have been sacked because of his religion.
He claimed that he could provide a timeline of his companies if the Tribunal wished, and as for his discrimination Christians suffered it in government, the parliament and the military. Egypt was a Muslim country and he was a second-class citizen there. Regarding the inconsistencies in the accounts of his employment he said that what he had said was the truth. He couldn’t fit 20 years of employment in one document.

He was asked why he had delayed applying for protection for nearly two years after arriving in Australia and he claimed that he had been caring for his sister but was refused a carer’s visa and when he arrived found out he would only be here for six months and someone told him that a protection visa application may take four or five years, so he applied for a carer’s visa and didn’t think he would be refused. Asked why he didn’t apply for protection straight away if he believed he was at risk of death regardless of how long the process took.
He claimed that his lawyer would be able to get a carer’s visa – he agreed that it was the same lawyer who told him to make up the previous dates. He was asked if he had made a complaint against her and he claimed that he had enough problems at the moment. He was told the carer’s visa was easier and quicker and he would be able to bring his family here.
The adviser claimed that the applicant was told a carer’s visa was virtually guaranteed which was why he didn’t apply for protection. She was told that if the adviser was guilty of such egregious behaviour as had been alleged it was strange that no formal complaint had been raised.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant last arrived in Australia on a [visa] [in] December 2012, and applied for protection on 14 September 2015. The Tribunal sighted his Egyptian passport; I accept that he is a national of Egypt and his application will be assessed as such.
The applicant is a [age] year old married Egyptian Coptic Christian who claimed that he would be killed by his brother-in-law who had converted to Islam and wanted his daughter returned from Australia, or targeted by a Muslim group because he had spoken to one of them when he tried to form a relationship with the applicant’s cousin.
To the extent that they were relevant I have taken into account the DFAT Country Report – Egypt and the DFAT Thematic Information Report – Egyptian Copts.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
The applicant included a letter from a GP dated January 2020 that said he was anxious and depressed because of his family separation and this caused him to be forgetful. Another letter from a different GP dated [October] 2019 makes no mention of forgetfulness but does recommend a positive visa outcome. I have taken into account this evidence but lend it little weight in accounting for the inconsistencies in the applicant’s claims which were in my opinion due to their having being fabricated rather than because of any lapses in memory.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claim in order to be granted a protection visa.
Related Issues
An enormous amount of country information was provided by the applicant’s adviser (folios 37-375) prior to the hearing but I have lent it little weight. No effort has been made to link particular elements of it to the applicant’s specific claims – indeed there is no apparent effort on the part of the adviser other than to photocopy various news reports and submit them to the Tribunal without arguing their relevance to the applicant’s particular case. On receipt of the voluminous country information the adviser was asked to give a short summary of the relevant articles and their relevance to the Tribunal prior to the hearing. This was done but they remained general in nature and failed to convince me that they were relevant to the applicant’s individual claim. I give more weight to the various inconsistencies in the applicant’s claim and the country information report provided by DFAT in assessing his credibility.
The applicant also stated that the name of another applicant ([Mr E]) had mistakenly appeared in the applicant’s past documents and that he had concerns that the applicant’s name had mistakenly been included in Mr [E]’s claim (he also claimed that he assumed Mr [E] was Muslim Brotherhood as he was a Muslim from Egypt applying for protection and this increased the applicant’s fears regarding compromise).
I do not accept that there is a real chance that this administrative error gives rise to a well-founded fear of serious harm due to his name being revealed to Mr [E] or any other protection visa pplicant. Neither he nor his adviser had made any request of the Department to check whether the applicant’s name was included on Mr [E]’s file or anybody else’s (they did so only after the Tribunal raised its concerns at the lack of action in this regard) which would not indicate the applicant was not sufficiently concerned about the issue when advised about it by the Department. There is also no basis for the applicant’s claim that Mr [E] was a Muslim Brotherhood member simply because he was a Sunni applying for protection in Australia.
The applicant was keen to emphasise the harm and threat of harm to his family in Egypt and how this was inextricably linked to his own claim. I am required to view the harm that he claims has been or will be experienced by his family through as it relates to the applicant. I have done this and, as I note below I find his entire claim of personal threats to him and harm to his family to have been fabricated.
Harm for Standing up for His Cousin
I do not accept that the applicant had been threatened with kidnap by a Muslim group because the applicant had warned a Muslim suitor off from trying to marry the applicant’s Christian cousin. He claimed that this had occurred around 2001/02. Not only was this nearly two decades ago, the applicant visited Australia in 2003/04 and voluntarily returned to Egypt. I do not accept that this was because the threat was not significant at the time but increased after the revolution.
Of more importance I note that the applicant had previously claimed that he and his brother stood up for their cousin [Ms F] who was verbally abused for helping a Muslim woman 2012 and then the applicant and his brother were threatened by this Muslim man and other MB members. These Muslims then allegedly asked for [Ms F]’s hand in marriage but they were refused and [Ms F] was kidnapped in 2012. Records indicate that the applicant’s brother had been in Australia since 2009 and during the hearing the applicant stated that he gave a false date on the advice of his previous adviser as he was desperate.
No complaint has ever been lodged by the applicant against his adviser and I am satisfied that the applicant knowingly provided false information in an effort to improve his chances of gaining a visa. This must negatively influence the Tribunal’s view of his credibility. As a consequence I do not accept that either of the incidents mentioned above ever occurred.
Harm from Former Brother-in-Law
I do not accept that the applicant has or will be threatened by a former brother-in-law who had converted to Islam and blamed the applicant for the failure to return his daughter to Egypt. The applicant’s account of the dispute lacks credibility.
To begin with the applicant claimed that the brother-in-law converted around 2001 and his wife (the applicant’s sister) then came to Australia the next year. The applicant had received threats that he claimed weren’t too bad until after the revolution in 2013. The applicant claimed that he was in such fear of his brother-in-law that he moved constantly between relatives’ houses but had to return home in order to check it was secure.
In 2013 he claimed that the brother-in-law and a group of MB men coincidentally came to the house at the time the applicant was there alone. Yet, despite having allegedly threatened the applicant for more than a decade and finding him alone while he had a group of MB with him, the brother-in-law simply threatened him again. If the brother-in-law was seeking the return of his daughter and three members of the applicant’s family had already allegedly been kidnapped I find it implausible that the applicant would not have been assaulted or kidnapped himself in these circumstances.
The actions of the brother-in-law with respect to getting his daughter back also lack credibility. The applicant didn’t appear to know if there had been any court action on the part of the brother-in-law to seek custody of his daughter – it is reasonable to believe that if the daughter had been taken without his permission then he would have initiated some action if only to potentially involve the Egyptian government if she had been taken to Australia without his knowledge or permission. Country information indicates that the Egyptian family court system does award custody of children in disputes so it is strange that the applicant didn’t know if the brother-in-law ever attempted to avail himself of this option, particularly given the child was allegedly taken out of the country without his permission.[1] At a minimum the applicant’s sister would have received a summons if she had, and it is reasonable to believe that applicant would have been aware of this if one had been sent.
[1] accessed 20 January 2020
Then there is the inconsistency between the lack of any legal action, the perfunctory approaches to the applicant by the brother-in-law to threaten him from 2001 but then the renewed focus on the applicant more than a decade later. These are not the actions of an Islamic convert father desperate to get his daughter back so he could convert her. Now the daughter is an adult in her early [decade], an Australian citizen and married to an Australian citizen. It lacks credibility that the brother-in-law who had been so limited in his attempts to ‘retrieve’ his daughter when she was more able to be influenced would continue to do so nearly 20 years later when she was a young adult.
The actions of the applicant himself are also inconsistent with someone who claims that his son has been threatened with kidnapping by a MB-aligned Muslim convert ex-brother-in-law. If he was that fearful of his son being kidnapped it lacks credibility that he would leave him in Egypt while he came to Australia. And the lack of any kidnapping attempt in the more than four years since the applicant has been in Australia is further indication that he is not a target of kidnapping.
I also note that the applicant has a brother (with children) living in the same building as the applicant (folio 510) yet nothing appears to have happened to him or his children all these years despite the ex-brother-in-law’s alleged threat that all the family’s lives would be in danger unless his daughter was returned (folio 41). It also calls into question why the applicant had to go check on his apartment and place himself at risk (given the brother-in-law appeared there with several MB offsiders) when he could have gotten his brother who lives on another floor to do it.
I also do not accept the claim (folio 510) that Salafists had occupied a building adjacent to theirs in Egypt and set alight a range of furniture on the roof of the apartment block. The photos provided of a few pieces of burnt furniture on a concrete base give no indication of the location where, or time when they were taken. No police complaint was made, it is not clear why a few random pieces of furniture would be set alight from an adjacent building and the account relies on the testimony of the applicant whose credibility I have found to be lacking.
Being sacked from Job for Being Christian
I do not accept that the applicant has been sacked from his job for being Christian. To begin with, there were many inconsistencies in his work history. It is easiest to set these out below:
a.2015 protection visa application: Various companies from 2005-12, [Employer 2] June-Nov 2012 then unemployed;
b.2014 visa extension application: Employed since 1999 in state companies;
c.2013 [visa] application: [Occupation 2];
d.2012 visa application: Worked in a company making [products]; and
e.2007 application: [Employer 6] from 2001-07 (no other companies were mentioned).
I am not satisfied that the inconsistencies were simply because he could not fit his 20 years of employment into one document. Rather he has been deliberately vague about dates and companies in order to make it difficult to check on his employment record. Regardless, his claims regarding being moved, demoted or sacked from employment rely entirely on his oral evidence, which I have already noted lacks credibility.
General Issues
I do not accept that there is a real chance that the applicant will face serious harm simply for being Christian in Egypt. While there have been instances of violence against Christians there are around eight million Copts in Egypt and the violence is not systematic nor is the government unable or unwilling to target those responsible. I do accept that Christians face a moderate risk of discrimination that is more likely to be societal and in rural areas, but do not accept that this constitutes serious harm for s 5J(6) purposes. The applicant lives in an urban area and has been educated and employed commensurate with his qualifications for most of his life, and has been able to freely travel overseas and return to Egypt. These are all indicative of someone leading a normal life in Egypt.
As a consequence of this and of my not accepting that the applicant has, is or will be targeted by Muslims it follows that none of his family members have been or would be kidnapped.
Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.
Complementary Protection
Because I do not accept that the applicant has had family members kidnapped, has or would be threatened by Salafists because he stood up for his cousin or his brother-in-law wanted to get his daughter back, that his private information has inadvertently been leaked to other Egyptian asylum seekers, that he would be subject to violence or that he had been demoted or sacked from his employment because he was Christian, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do 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, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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 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.
Rodger Shanahan
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 644

23 January 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction