1711051 (Refugee) - [2022] AATA 1310

1711051 (Refugee) [2022] AATA 1310 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1711051

COUNTRY OF REFERENCE: Egypt
MEMBER:Nicole Burns
DATE:16 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 March 2022 at 4:43pm

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – conversion to Christianity – non-practising Muslim – fear killing – threats from the applicant’s family – adopting Western behaviour – return visit to Egypt – separation from Australian citizen child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 9 September 2014, and the delegate refused to grant the visa on 9 May 2017.
The applicant’s nationality is not in dispute. He arrived in Australia holding an Egyptian passport and states he is an Egyptian national. The Tribunal accepts he is an Egyptian national and finds that Egypt is his country of nationality for the purposes of assessing his protection claims.
The applicant appeared before the Tribunal on 10 December 2021 to give evidence and present arguments about the issues in his case.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of…

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 1711051 (Refugee)

Details

AGLC: 1711051 (Refugee) [2022] AATA 1310
Case: [2022] AATA 1310
Decision Date: 16 March 2022

CaseChat Overview and Summary

The applicant, a man from Cairo, Egypt, sought review of a decision not to grant him a Protection visa. The applicant claimed to fear persecution in Egypt due to his conversion from Islam to Christianity, alleging threats from his family and the risk of being targeted by the community and authorities. He also cited concerns about adopting Western behaviours and the potential consequences of returning to Egypt, particularly in light of his separation from his Australian citizen child.

The core legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa under section 36(2) of the Migration Act 1958 (Cth). This required the Tribunal to assess the credibility of the applicant's claims of persecution, considering his stated fear of being killed or facing the death penalty for apostasy, and the threats he alleged he had received from his family. The Tribunal was also required to consider relevant country information and guidelines concerning refugee law and complementary protection.

The Tribunal considered the applicant's evidence, including his statement detailing his background, his family's devout Muslim beliefs, his questioning of Islam, his relationships with Christian individuals and communities in Australia, and the alleged threats from his brother. However, the Tribunal found that the applicant did not satisfy the criteria under section 36(2) of the Act. The decision noted that there was no suggestion the applicant satisfied the criteria based on being part of the same family unit as a person who held a Protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is [an age]-year-old man originally from Cairo, Egypt. He came to Australia [in] December 2011 holding a provisional Partner visa sponsored by his then Australian citizen wife, [Ms A], whom he had met and married in Cairo earlier when she worked at an [agency] there. Their relationship subsequently broke down (separating in around August 2012), and the applicant’s permanent Partner visa application was refused as a result.[1] [1] On 25 February 2013 the applicant sought a review of that decision with the Tribunal (differently constituted) who affirmed the decision to refuse to grant him a Partner visa [in] August 2014. At hearing the applicant advised that he has a daughter born on [date] in Australia who he shares custody with his ex-partner (an Australian citizen, [Ms B]). He visited Egypt from [April] 2018 to [June] 2018 with [Ms B] and his daughter, before they separated, visiting his family members there. His parents are deceased and his [number of siblings] live in Cairo. In summary the applicant claims to fear persecution from his family, the community and the authorities in Egypt as a Christian convert from (Sunni) Islam. In a statement accompanying his Protection visa application (received by the Department on 10 September 2014) the applicant set out his background, and protection claims, summarised as follows:·He is from Cairo, and has [number of] siblings.·He comes from a devoted Muslim family. They had Koran lessons when young, which he knew by heart.·All of his female family members cover up and the males belong to the Muslim brotherhood or Muslim Salafist.·During his childhood he was only exposed and dealt with Muslims with thoughts that Islam was the only true religion. However, he always questioned himself and had different approaches, and started to meet Christian students at high school.·He heard stories about Christians growing up and a few years before he came to Australia witnessed attacks on Christians in Egypt including burning of churches and he felt ashamed as a Muslim.·He worked in [Occupation 1] in a [location] in Cairo with foreigners, which is where he met his ex-wife ([Ms A]) who was working as [an Occupation 2] at an [agency].·His family (devoted Muslims) were against his relationship with [Ms A] because she was not a Muslim and they married against their wishes as she was not willing to convert.·He and [Ms A] had major arguments after he moved to Australia including about whether or not she would accept Islam. ·In Australia the applicant became more moderate after working with people from different religious backgrounds, and joined a group of Christians who became friends. ·His wife thought he had become more attached with others from Coptic Egyptian backgrounds, spending more time with them than her.·Around this time he had a back injury, and was depressed. He started reading the Koran but started to question it after being exposed to a new life. ·After his separation from his wife he got closer to his Christian friends and his church, who were supportive and positive.·He was introduced to a new girlfriend, an Iranian Christian woman – [Ms C] – and through her got to know more about Christianity, and started attending an Iranian church in [Suburb 1] called [Church 1]. ·The applicant’s family in Egypt became aware that his marriage had ended (via [Ms A]) and that Christianity had been a major issue. It is not accepted in Islam and he would be considered an infidel and could expect the death penalty.·He met a friend at the gym – [Ms D] – who attended the same church as him in [Suburb 1] which is another reason why he became more attached to the church.·His brother telephoned him and threatened him because he had dropped Islam and embraced Christianity.·If he returns to Egypt his life would be at high risk as he could easily be identified as a person who converted to Christianity from Islam and could be charged or receive the death penalty. There is no place there he could stay and he could be easily targeted based on his identity card and national ID.

Decision

Reasons for decision

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 any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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