1707034 (Refugee) - [2021] AATA 3252

1707034 (Refugee) [2021] AATA 3252 (21 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707034
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Gabrielle Cullen
DATE:21 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 21 June 2021 at 10:18am
CATCHWORDS
REFUGEE – protection Visa – Egypt –religion – Coptic Christian – harassed and assaulted – Muslim Brotherhood – health conditions – mental and physical incapacities – effective protection measures not available to applicant –– decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Chan Yee Kin v MIEA (1989) 169 CLR 379
Ram v MIEA (1995) 57 FCR 565
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143
SZTEQ v MIBP (2015) 229 FCR 497
VBAO v MIMIA (2006) 233 CLR 1
VSAI v MIMIA [2004] FCA 1602
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 23 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant is an [age]-year-old male citizen of Egypt and his wife is a [age-year]-old female citizen of Egypt. The applicants claim to fear return from Muslim extremists as they are Coptic Christians.
The applicants arrived in Australia on [date] January 2016 on Subclass 600 tourist visas granted on 12 November 2015 to visit their three sons, who are Australian citizens. They previously visited Australia on tourist visas from [July] 2000 to [January] 2001, [January] 2004 to [March] 2004 and from [April] 2013 to [June] 2013[1]. The applicants visited [Country 1] for tourism purposes in 2010/2011 and 2014. The applicants applied for protection visas on 24 February 2016.
[1] While it is not on the Movement Record the applicant has provided evidence at hearing and by way of passport stamps evidencing his visit to Australia at this time. The applicant’s son also indicated he visited Australia in 2013.
On 18 July 2016 the first named applicant (the applicant) was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
On 23 March 2017 the delegate refused to grant the visas. While the delegate accepted that the applicants moved from their home in Sohag, Upper Egypt to Cairo in 2013, she found they only faced low-level harassment and threats from members of the Muslim Brotherhood and…

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.

Continue reading 1707034 (Refugee)

Details

AGLC: 1707034 (Refugee) [2021] AATA 3252
Case: [2021] AATA 3252
Decision Date: 21 June 2021

CaseChat Overview and Summary

The applicant sought a protection visa, claiming a well-founded fear of persecution in Egypt due to their religion as Coptic Christians. The applicant alleged harassment and assault by the Muslim Brotherhood, and presented evidence of significant mental and physical health conditions, arguing that effective protection measures were unavailable in Egypt. The matter came before the Tribunal for reconsideration of the protection visa application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether they were a refugee owing to a well-founded fear of persecution for reasons of religion. This required the Tribunal to assess whether the applicant feared persecution for a Convention reason, whether there was a real chance of such persecution if returned to Egypt, and whether effective protection measures were available to the applicant in Egypt.

The Tribunal considered various forms of evidence, including the applicant's visa applications, statutory declarations from the applicant and their sons, country information regarding Egypt, and a specialist geriatrician's report detailing the applicant's health conditions. The Tribunal was satisfied that the applicants were persons in respect of whom Australia had protection obligations under section 36(2)(a) of the *Migration Act*.

The Tribunal remitted the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the *Migration Act*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant criteria are outlined in an attachment at the end of this decision.CONSIDERATIONS OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:·The applicants’ protection visa applications of 24 February 2016, and statutory declaration of the applicant dated 22 February 2016 as well as identity documents.·Oral evidence of the applicant provided at the Department interview held on 18 July 2016 and of the applicant at the Tribunal hearing held on 15 June 2021, as well as the applicants’ son.·Submission from the applicants’ representative dated 29 July 2016, explaining the reasons for the applicants’ delay in lodging visitor visa applications after their first application was refused, their delay in lodging protection visa applications after their arrival in Australia and the applicant’s age as a factor in his recollection of past events at the Department interview, noting he was [age] at the time of the interview. She also provided evidence via passport stamps of the applicants’ last visit to Australia in 2013. ·Country information submitted to the Department as follows:o Article dated 29 July 2016 titled “Blast at police headquarters in Cairo kills at least four” in the o Article dated 24 January 2014 titled “Al Qaeda group claims responsibility for Cairo bombings” by The National Staff. o Article dated 22 March 2014 titled “Anti-coup demonstrators rally in Egypt – Thousands of protestors stage fresh rallies in Cairo for a third straight day as part of an 11 day anti-coup campaign” by Aljazeera. o Article titled “Anti-government demonstrators rally in Egypt: 169 arrested, 4 dead” by CNN Egypt Independent Ahram Online. ·Statutory Declaration by [Mr B] dated 2 April 2021 as follows:1. I was the one who was assisting my mum and dad with their visitor visa applications. 2. After the first refusal, I was advised by a Migration Agent to wait before lodging another application as lodgment right after the refusal would not be beneficial and most likely result in another refusal. 3. When they arrived, they were in very bad medical and psychological condition and they needed immediate medical attention. 4. My dad suffers from [various medical conditions].5. Mum suffers from [various medical conditions]. Due to their bad health, they cannot return to Egypt and live independently, as they suffered great psychological trauma and their physical and health conditions does not deem them fit to live alone.·Statutory Declaration of [Mr C] dated 16 April 2021 declaring that he has moved from Melbourne to Sydney to help his parents as their health issues have deteriorated recently and they need more care than his two brothers can tolerate alone. He submits that they are unable to live independently.·Statutory Declaration by [Mr A] dated 19 April 2021 noting that he has the main responsibility for the care of his parents, as they cannot live independently or return to Egypt.·Report from [a] Specialist Geriatrician dated 9 April 2021 who outlines the applicant’s medical history and notes the following:[The applicant, Mr D,] was accompanied by his son [Mr A] today. He currently lives at home with his wife, and has 3 supportive sons. He is a man of Egyptian origin, who migrated here approximately 5 years ago. His son states that [Mr D] has had some slow progressive cognitive decline, especially after his [body part] replacement last year. [Mr D] can be very repetitive in conversations, and occasionally has poor short term memory, not remembering conversations. His long term memory remains intact. [Mr D] also gets anxious when he is unable to comprehend certain conversations. Stating this, he generally sleeps well. There has been no history of aggression. There has been no hallucinations or delusions. [Mr D] currently mobilises with walking stick. He has not had recent falls. His sons assist with domestic duties, as well as shopping and transport. He is a retired [occupation] from Egypt. He is currently continent of urine and faeces. He stopped smoking 40 years ago, and rarely drinks alcohol.In terms of other issues, [Mr D] has had recent blood tests, with well controlled cholesterol levels, and Hba1c shows well controlled glycemic index. He is compliant with his medication with the assistance of his sons. On examination today, he had an alert and reactive mood. Blood Pressure was 125/70 mmHg with no postural drop. Heart sounds were dual. Motor power in the lower limbs and upper limbs was 5/5 throughout. There was no evidence of Parkinsons disease. Impression:[Mr D] is a [age]-year-old man of Egyptian origin from home who has active management issue of cognitive decline. Based on today’s assessment, he likely has mild cognitive impairment of amnestic type, with mild anxiety. My recommendations:I would recommend that he has a MRI brain , which will assist us with assessment of his cognitive decline. I have emphasised the importance of exercise and social interactionI have let [Mr A] know regarding the use of [medicine], which may assist with cognitive decline.Please check his TSH levelsI will review him after his MRI brain. ·The applicant’s Patient Health Summary obtained from his [GP], dated 16 April 2021. It notes the following:

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.Gabrielle CullenMemberATTACHMENT – CRITERIA FOR PROTECTION 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–5LA, which are extracted below.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 below.Mandatory considerationsIn 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.EXTRACT FROM MIGRATION ACT 19585 (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.…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.…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.…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 familyFor 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 of 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 of persecution would not exist if it were assumed that the fear of 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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