1710536 (Refugee)

1710536 (Refugee) [2020] AATA 4274 (2 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710536
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:2 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 October 2020 at 2:07pm
CATCHWORDS
REFUGEE – protection visa – Egypt – imputed political opinion – social media posts critical of government – fear of harm by government and army – credibility – delay in applying for protection – applied only after student visa cancelled and cancellation affirmed – no mention of social media activity in protection visa statement – low-level activity – no membership of political party – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 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 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 on 3 May 2017 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 5 January 2016.
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’s protection visa application contained the following information:
I left Egypt when I was young. My dad was working in [Country] and all my family Saied this [my] future with his dad in [Country]. So I brought up and this idea with me I will leave
this country. After too money years I brought up as well as all my ages and I will finish my study and prepare myself for traveling outside to [Country] to have a work and start my life.
I finish my study and when you finish your study you have to go to the army to see or know what your situation all Egyptian guys have to and the army say this if they need you or no. Now I am free from the army I am lucky. But If they where asked me I have to join the army and it will be 3 years. My dad idea Is going with him to [Country] he find job for my with the company he worked for he worked for this company for like 20 years
I have one friend named [Mr A] for long time from the school and he got chance to travel to Australia to study. My mom idea to travel to Australia to complete my study and going back to [Country] to worked and It may make me have good position and good money. My dad refused this he said I want to have rest want somebody to help me I Waite all this time waiting to this time my son be a man we can depend on and see him working and stating his life .
We discuses this for long time at the end I am here. THANKS MOM. All what I gives before is my specific details, but why my dad left the country for 30 years, why they thinking about me
all the time about my future to leave this country, beacouse every one in Egypt life without respect, job ,future. No life in this country so everyone wish to leave this country. ALLMOST of Egyptian people wishes to leave the country .EGYPT NO FUTURE.
What do you think will happen to you if you retune to that country ?:
I answer this question as I am already in Egypt all turned back to Egypt. I WISHES THIS NOT HAPPEN. I fell depletion not happy I will stay long time alone only myself do not want to see talked deal with anybody even my mom, dad, and brothers long time it mean years not months not weeks. After all this time if I based I will lost myself. I WILL LOSE [myself]. WHAT is the death mean, when I say some one died what is that mean, it means we will not see or talk to him any more. why because we lost him, he died.
I should not die by my body, my idea I can eat drink still in life doing everything as people, but I am not this one I used to know this is someone I do not know him .I heat to be like this I
need to leave and planning for future good and safety one for me and my kids I haven't but one day my I have
Did you experience harm in that county?
YES. I left that country since 2008 so that for a long time. The harm I expired in that county you life for nothing, no future for you so you will take the reason to reach the result in Egypt noting like this I and too money people finish our study and waiting for work no work .we lived yesterday to reach today and today reach you tomorrow. In Egypt no tomorrow future I mean.
All of this before many years so what about today, now the life still and be worth more than before.
When I arrived Australia at first time I found it green country and the traffic light and everything organized well the train the people even the police man all good as you read in books I found everything beautiful in Australia and all where you found the most worth in Egypt. The government responsibility is to find solution for the problems should be support the people standing behind, worry about. careful about that's what I know or what I read and I
found it truth with Australia.
I still insist its harm shouldn't something much important happen to me or my family to say Its harm .When I can't find job only my dad has my responsibility he pay for me and he lose his life for us we can't see him as much as we can 30 years out of the country has come as holidays one or 2 months all the year and you heat this and you will be like this it's your future and it is important the people think you are lucky .ITS HARM ITS TOO MUCH
Did you seek help within the country after harm?:
NO. Of course ever one in this world have something believe in, that's government there now and before believe only thyself not thinking about the people at all. so they have decision before they will not help or product people they know how to make the people scared, harmed, and shut up they mouths off and killed they are killer especially that's governments nowadays, that all what they know and believe in
Did you move, or try to move, to another part of that country to seek safety?:
YES. I just move to the capital Cairo and too first to find work and find yourself and many people moved to other towns to get got life and work, all is the same all of the country, and that’s what the government plain for they need the people thinking about how to save the life even the work they can’t found so they will not talk about politics and this and the government did this they wanted to save they work and position. Thay money .themselves only .and the people and I am one of them are slaves .EGYPTION ARE SLAVES
Do you think you will be harmed or mistreated if you return to that country ?:
YES. Any normal one be harmed in that country ,I can say more anyone normal or up normal be harmed not only me almost of Egyptian people harmed without any reason .shouldn’t be theirs
reason or no to harmed or mistreated ,if you have idea ,or making not mistakes or criminal may the police man take your wife or girlfriend from you and makes something wrong in front of you
cause only he didn’t like not your idea no thy way you take about they can do whatever they want anyone have bower he can do the same without any reason without any punishment .we are slaves.
My name is [Given name] I lived in Egypt till I am [Age 1] years my family my mom my dad brought me up in good way and teaches me how to think and thanked and respect and love the others. The situation in Egypt at this time not good not so far bad. we have good and great chance to have good country and home . I talk about Mubarak the pervious president to Egypt.the young people at this time and my dad was one of them and my mom as well starting they life they get married they were cousins and my dad hade chance to travel outside of the country to looking for good chance for life and he travelled to [Country] to work there.
Many people like this all the society are the same, too money travelled outside looking for the chance for their family .and they got it at this time they thinking it’s so good for them better than sting inside Back to the government ,I want to say here in Arab countries there no government I mean the president he have all the power and minister and premium minster just people doing the order, all the order coming from the head the president even the small things.
At this time the people were happy, they have work even the people not travelled because people going outside so the people inside have chance to work and they have life good or bad but they have at list income that during 1980 to1990, from 1990 the problem starting because the good chance no one used and the president he have to think about those people it is his job no he thinking and doing all the full control about the country.
Back to people. the people travelled outside they have good chance for good life for the family and I am one of those because the income was good and those family they can saving some bite not much, the people worked inside they income still low but their some of some working for the government so they have income for ever even they stop they jobs like superannuation
The society be parts too many parts too many levels, highest levels those are the people closed to the people closed to the power, we can’t take about the people were in the power because they not have power only they because coming from the god{the president}so those closed to the god, their are the god friends and those god friends given the power to the friend only and all
other people are slaves and those given the power to the people coming after and its like this like steps the president sorry the god of course number one and then, so you have to find someone like those even he was in the last steps to save yourself and nothing for free ,whey he
will save you.
The people where outside because they income good and the other inside they have chance to worked but we still have like 60% of Egyptian at this time no work, no jobs, no income, no life, all this an 1991 to 2000 and we still have the same god ,the same president the same system. In 2000 the problem be bigger and bigger, before the president he thinking and acting as he is god, but now he already believe in he is god, no one can talk to him and that all country and all those people he owned he isn’t president he is the own.
At this time I am in my first year in the university, [Name] University, studding [Subjects] ,my dad advise me to study this and I take this advise ,he said or imagine my I have good future by this study and he Saied you have away to think about things and you have idea and those should be in the manager you have that skills and by study you can make it grow.
At this time my dad be tired he worked for 20 years or more fare of his family and he fell he is homeless [Country] he spend the last 20 years their and he come to Egypt for holidays so he think where my home I lost Egypt everything changed his sons changed be old they have
idea he miss too much and he was worry he left the work in [Country] but he can’t complete in Egypt in back again.
The president at this time all what he thinking about only his son how to make him president, he not worry about the country, about thy people or not worry about someone he Is 19 years old he have dream to finish his study to help his family or at least to help himself. no he not thinking about all of this he thinking only about his family his son future. All Egyptians people refused this to make this one president only little bite of those people closed to him, or those people they can’t thinking about the future, all those are scared from to say no, or those be hopeless they think and after what happen all same, and it be the matter all the Egypt society talking about and they prepare to do this.
NOW we reach appoint so bad Its like for years that’s the all country doing nothing only to prepare this one to be the president. Now I finished my education, l finished my university
after 7 years, and now I should go to the army to join other 3 years there ,because if you have at least one brother you have to join to the army, its not important you want or no you love to join or no you haven’t this choice, the general who Deeside not you, any way I’m not join to the army. I go to them and finish all prepare but they Saied to me you are free not only me with money people.
The army its big story in Egypt big big story, I can take about the Armey too much but what is important for me now and I want to make it clear, this army is the Egyptians people and for they safety from the enemies attack you, may I am in the army and my brother or my friend hot joined so the army is a part of Egyptians people and thy jobs is to defend about the other .and the order coming from the general and its so hard system it’s the army and we respect because the great job he did and we scared because the marshal and the hard system and if you will not accepted the order its other storey.so you have to listen to the orders whatever this order was .
There were another 18 pages of handwritten notes but they did not add to anything that had been submitted above.
AAT Hearing
The applicant was asked whether he knew everything that was in his protection visa application and whether he knew it to be true and correct, and he agreed that it was true. He claimed that if he returned to Egypt he would be a liar. Asked what serious harm he feared, he claimed that he had answered.
It was put to him that being a liar wasn’t serious harm and it needed to relate to harm to him. He claimed he would have to agree to sign a statement that he wouldn’t be swimming against the tide or else he would be rejected. He was told that he needed to be precise with respect to his claims.
It was put to him that he had previously provided 200 pages of country information without referencing so he needed to be specific about his particular claim to fear serious harm. He was asked again about the serious harm he feared on return to Egypt and he claimed there was a possibility he would be arrested. Asked by whom, he claimed it was the Egyptian government. They would do this because he shared stuff about the events in Egypt and general opinions on Egypt and this would cause him trouble. He was asked and confirmed this was his only claim.
Asked if he had ever made claims previously that were different to this one (regarding his active [Social media] account critical of the government), he claimed that he mentioned this before and also that he had been in Australia a long time and wanted to stay here. Asked again if he had made any different claims previously, he said he hadn’t. Asked if any claims he may have made previously were still valid, he claimed he had not mentioned any different reason before. Anything he had said previously would just have been an explanation of this claim.
Asked if attended his Immigration department interview, he said he didn’t because he never received the letter. He said that the DIBP interview request was sent to the appropriate address. He then claimed that no one is allowed to vote or give their opinion in Egypt or they would be arrested. Asked about his own personal experience, he claimed that he didn’t belong to any political party and was just a private citizen.
In Egypt there is compulsory military service. When he was in university they were still able to talk but could have different opinions – the situation was better 15-20 years ago. Asked to focus on the point at which he feared serious harm, he claimed that there was a group in Egypt and there was a massacre. Protests happened and there were killings by the army. The army had no respect and killed people in the mosques.
He got things onto his [Social media] page as they deleted things from [another site]. He wanted to keep them alive. He couldn’t remember the date exactly but it was maybe 2013. He apologised for not remembering the date. There was a war – the army versus the people. It was put to him that the Member knew the background and he needed to focus on his own account. When he started posting these on [Social media] his family began having problems as the neighbours didn’t like it and they began to talk to his father.
His family became scared and the situation in Egypt isn’t good as the army is in control. His father complained to him and told him to delete his [Social media] posts as it was causing them problems but he said no. That caused him trouble with his family. His father stopped sending him money as a result. In College in Australia he had problems and he could not go. He was studying [Subjects]. He did not complete the course. Asked why he didn’t finish them he said his father supported him financially and so he couldn’t continue. Asked if he passed all his subjects, he claimed that he didn’t pass them all.

He was asked to provide the Tribunal post hearing with the results of his courses in Australia. He claimed he would send as many certificates as he had. He was told the Tribunal wanted the results by subject, not certificates. He said it was difficult to send the course results. He was told it wasn’t hard as either he or the institution would have them and if he chose not to send them the Tribunal may draw a negative inference as a result. He said again he wasn’t sure if he could do this so he couldn’t promise.
He was asked why he thought the Egyptian government was interested in him because of his [Social media] account. He claimed they were stupid and he was just someone talking. He had this account since 2013, still had it but didn’t use it much. He knew they could trace the links on his page and know what he was doing. He was asked why he didn’t send a copy of the link to the Tribunal; prior to the hearing. He said he didn’t think of it and there were graphic images on it and he didn’t like to watch it. He was asked to email his [Social media] page after the hearing so the Tribunal could view it.
He was asked his [Social media] account name and the member tried to get it up on the screen but there were too many accounts of that name. asked when he first believed he would be in trouble for posting these, he said when his family had the problem. Neither he nor his family belonged to any political party. Asked if this was in 2013, he claimed that it did. He said because he posted on his [Social media] page they were considered members of the Muslim Brotherhood (MB) by the people around them and who knew them.
In Egypt people are nosy and curious and want to know everyone’s business. His family was still living in their house - he gets on well with his family. Asked if anything happened to his family because of his [Social media] posts, he claimed that it did and his father told him not to post anything on [Social media] so nothing would happen to them. This was around 2014.
He was asked why the government would have any interest in him, and he said that he said that he called them killers. He began calling them this since the day when they killed people. Asked when this was, he claimed that it was a long, long time ago. Asked what year, he said it was in 2011.
Asked why he only opened a social media profile in 2013 if they had been killing people since 2011, he claimed that in 2011 things occurred every now and then and nobody knew who was doing things. But in 2013 it was a big event by the army.
He was asked why he waited until January 2016 to apply for protection if there had been problems since 2013, and he claimed that his life was stable as he was a student, had his studies and life was stable. Then the college rejected him and it was immigration who advised him to apply for protection. Asked if he had evidence that they told him this, he claimed that he did.
Asked what evidence he had, he claimed that he had the decision of the court and immigration. It was put to him that he had said he had evidence that Immigration told him to apply, and he said that he had stopped attending college, the department asked why he stopped studying and he told them. They then said he could apply for protection and he had the email.
He was asked what the situation was that made him stop studying and he said that his father used to support him financially but stopped doing so. He was asked why he didn’t apply for protection when he stopped studying, and he claimed that when he had no money he would have to go back to Egypt and he told the Department and they told him that he had the right to apply for protection in Australia.
He was advised about s 424AA and it was put to him that his student visa cancellation notice and subsequent appeal had been read by the member and it said that he had no intent to study and that he enrolled in order to continue his student visa because he liked living here. The concern was that he had been posting pieces on his social media page since 2013 but didn’t apply for protection until January 2016. The concern was that he never felt harm and his protection claim was simply because he had run out of ways in which he could stay in an economically advanced country.
He said this was correct. It was put to him that the Tribunal had a concern that he was simply an economic migrant given the delay in applying for protection. He claimed that what we both saying was correct. He wanted to stay here but he also feared harm if he returned to Egypt. Asked why he didn’t apply for protection earlier, he claimed that he didn’t know about protection at the time and he still had his student visa and was living here legally.
It was put to him that he wasn’t going to classes and was asked what he did to find out about applying for protection. He claimed that he didn’t go to classes because he had no money coming in and knew the visa would be cancelled. He told the Tribunal that all he wanted to do was to stay in Australia. He said that even if he had a student visa he would still face the same problems if he returned to Egypt. His main concern was that he didn’t want to go back.
It was put to him that there was very little mention of his [Social media] posts in his rather lengthy protection visa statement (more than 20 pages), which didn’t indicate that it was much of an issue in his claim. He said that he didn’t really collect his thoughts in an organised way.
It was also put to him that he had mentioned a fear of being conscripted in his protection visa claim. He stated that this was a misunderstanding and that generally they would all be subject to military service. It was put to him that he wasn’t and he said that he had an exemption and confirmed that he didn’t need to undertake military service on return to Egypt. Asked what qualifications he had completed in Australia, he said he did courses in [Subjects]. He said he needed five minutes to explain his study and he was told he could cover this at the end as the issue wasn’t that relevant.
He was asked why he would be considered MB if he returned to Egypt, and he claimed that it was a scary word and could cause one big trouble. Asked if he had anything to do with the MB he claimed that he hadn’t, but because of the posts he had put up he would be considered a MB.
Asked about the study issue he wanted to mention, he claimed that in 2007 and Egyptian or other nationalities come to Australia because it is a better place. That was the main reason he came but education wasn’t the only reason as he had also been to university and he wanted to learn about life and different cultures. Because of what happened to him he stopped mid-way; he couldn’t continue with his studies nor could he return to his country.
Asked if he had anything else he wanted to raise, he said he didn’t. he wasn’t currently married. The Tribunal asked for the applicant to provide his link to his [Social media] page immediately post-hearing. He was also advised that there was no country information that simply posting things on [Social media] without the person having a political profile brought that person to the attention of Egyptian authorities. He claimed that the word law was not known in Egypt. He was asked to provide country information that would support his claim about people who came to the attention of Egyptian authorities for simply putting up posts on their [Social media] page.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia on a student visa [in] July 2008, and applied for protection on 5 January 2016 after having had his student visa cancelled. I have sighted a copy of his passport and accept that Egypt is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing via telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is a [Age 2] year-old single male. He claimed that he feared being arrested by the Egyptian government because he shared information about, and general opinions on Egypt. He stated at the hearing that this was his only claim.
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.
As can be seen from the rambling nature of his supporting statement and the enormous volume of paperwork that he submitted as relevant ‘country information’ but which was neither relevant or referenced, it was at times difficult to discern his actual claim. The Tribunal is confident however, that the direct question asked of him at hearing elicited what his actual claim was.
Overall 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 claims in order to be granted a protection visa.
Social Media Presence
I accept that the applicant has a social media page. He provided the link to it post-hearing as he was requested to do. I have looked at the [Social media] page and it is not indicative of someone with an anti-government profile. There are three re-posts from other people that concern individuals who have been detained in Egypt. They date from 2015 (one was reposted in 2016 but was written in 2015). Two videos on the site from 2013 are no longer available for viewing. Post-hearing he sent an e-mail with two videos that featured a number of bodies wrapped in shrouds. There was no text with the email, nor was the text below the [videos] translated. The videos themselves were posted in 2013 by someone named [Mr B].
I do not accept that the applicant is of any interest to the Egyptian authorities for this activity. Whilst I accept that the Egyptian authorities crack down on individuals who come to their attention for attempting to protest, or human rights defenders engaged in human rights activities[1], his activities in the social media space are minimal, consisting of around half a dozen re-posted articles and videos several years ago and he has no profile as a human rights activist or demonstrator.
[1] DFAT Country Information Report – Egypt, 17 June 2019, pp24-5.
He makes no mention of his internet activity in his extremely lengthy protection visa statement, which it is reasonable to believe he would have down had it actually been of concern to him. I do not accept that the absence is due to his inability to collect his thoughts in an organised way. There is also the delay in his applying for protection – he only applied in January 2016, after he had lost his appeal regarding the cancellation of his student visa. I do not accept that he didn’t apply because he was still here on a student visa, given he was not attending any classes and he did nothing to find out what any options to gain protection may have been open to him. Given he claimed that he was posting what he claimed were videos that would raise his profile with the Egyptian authorities since 2013, his failure to apply for protection until January 2016 is further indication that he didn’t feel any real concern about his re-posts being of concern.
I also do not accept that the applicant’s father began having problems with the neighbours because of his social media posts, they were considered members of the MB because of this and his family became scared as a result, asked the applicant to take them down and when he refused, his father stopped funding his study. The applicant was asked for his College results so the tribunal had something to check against his claim, yet he never provided them post-hearing.
Given he posted so few entries on [Social media], and these were themselves re-posts I do not accept that the neighbours would have been likely to see them let alone take sufficient umbrage at them to make it an issue with his family. I also note that his family remain at the same address so even if there was a dispute it doesn’t appear to have been sufficiently serious for the family to have to move away, or for the authorities to impute the family (or by association the applicant) with membership of the MB given that organisation has been deemed a terrorist group by the Egyptian government since 2013.
Other Issues
Post-hearing the applicant sent an email in which he said he had lost his passport, reported it to the police, received the report and given it to the Egyptian Embassy in order to be issued a new one. He claimed that the embassy officials had told him they were not ready to issue the passport and he was concerned they were still checking and they were looking at his social media profile.
I lend this account little weight. It was never raised at hearing, and the applicant has not provided a copy of the police report (although he has provided a number) nor any evidence that he has applied to the Egyptian embassy (citing the fact that he paid no fees so has no receipt).
I also do not accept his claim that no one is allowed to vote or to give their opinion or they will be arrested. Parliamentary and presidential elections are held in Egypt and, while it is reasonable to ask how fair they are given the limits to political participation by some parties, voting is still allowed. And, while the space for political dissent is limited, I am not satisfied that the applicant’s minimal social media activity is known or of interest to the authorities, or that he has any sort of political profile that would bring him to the attention of authorities.
I also do not accept that the applicant would be considered to be MB for putting up the posts he had. Given he had begun re-posting two videos in 2013 and the MB had been listed as a terrorist organisation that year, his delay in applying for protection until January 2016 would appear to indicate that he had no subjective fear of being considered MB and therefore there is no objective basis for him being considered to be a member of the MB.
I have also taken into account a range of country information he provided post-hearing however lend it little weight. They are a mix of human rights organisation’s reports and the stories they relate about actions taken against human rights advocates do not equate to the background the applicant possesses. There is also no submission accompanying them in which he puts forward an argument about their relevance.
I also do not accept the applicant’s claims that ‘the police man take your wife or girlfriend from you…they can do whatever they want…we are slaves’ or that ‘there is no future for you…no work…life without respect.’ Indicate that there is a real chance that the applicant will suffer serious harm on this basis. Regarding these general claims he didn’t expand on either said that they would just have been an expansion of his [Social media] account claim and said that he had not mentioned any other different reason.
As the applicant hasn’t raised any other claims to fear persecution, and 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 either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was, is or would be considered a political opponent of the government or human rights campaigner, that he has been, is or would be considered a member of the MB, 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 Iraq, 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 4274

2 October 2020

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Immigration

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