1715246 (Refugee)

1715246 (Refugee) [2021] AATA 729 (11 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715246
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:11 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 February 2021 at 7:46am
CATCHWORDS
REFUGEE – Protection visa – Egypt – political opinion – membership of the Muslim Brothers (MB) – credibility concerns – inconsistencies in evidence – sympathiser/supporter only – delay in seeking protection – particular social group – organ transplant recipients in Egypt – access to medical care – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AA
Migration Regulations 1994, 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 19 June 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 1 April 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 provided the following statement as part of his protection visa application:
I have been a member of the Muslim Brothers (MB) since 1993. I was active and assisted the office of [the] leader of MB in [City 1]. Initially, I was mainly involved with organization of distribution of food, clothing and money to the poor. During the I returned to Egypt after the 2005 elections. At this time I became more involved in political issues because I was angered by the corruption of the elections.
My activity involved speaking out against corruption in Government, business, employment and other areas. Our activity increased at time of elections. Immediately before [the] Council elections in 2010, I was detained -with others for a period of 3 days. We were all investigated for our activity then released ln August-2013 I was one of many detained for protesting. After 6 days I was released but was required to report to authorities every day for 6 months.
After the 6 months period I was taken for questioning at random times. In June 2015, after some terrorist activities in Egypt a group of MB members from [City 1] were randomly taken and detained including [Mr A] who l had been working closely with. The same day Authorities came to my home and I was not there. I did not return to my home for a period of about 6 weeks.
In August some of those detained were released but not [Mr A]. I was told that my name was mentioned as one of those of interest. About 6 weeks later authorities entered and searched my home and business. Two weeks later I was held overnight for questioning. Most of the questions related to my activity with [Mr A] and I was told that they had evidence against me.
I was told to prepare evidence that I was not involved in any illegal (ie MB) activity.
If I return to Egypt I will be arrested, detained and imprisoned.
AAT Hearing
The applicant was asked whether he knew everything that was in his protection visa application and he knew it to be true and correct. He claimed that there were things in it that were real and parts that were not. Asked which was which, he claimed that he took an oath to tell the truth and what was not real was what the previous lawyer put in the application – she made it up.
He said she included things without his consent – she also told him there would be an interpreter who would come to the interview with him about his claim at her office and he went in by himself. Asked how they understood each other at the interview with his lawyer, he said the lawyer spoke broken Arabic and her husband normally interpreted for her. He said that he didn’t know if he was asked at the DIBP interview whether he knew everything that was in his application and he said he couldn’t remember.
Asked if he made an official complaint against his lawyer, he said that he was sick and just changed lawyers. Asked what serious harm he feared if he returned to Egypt, he claimed that a military officer was chasing him and he was being harassed for allegedly having ties with the MB. He also had a [organ] transplant four months after he arrived in Australia and couldn’t return because of the police case and because of his transplant.
Asked what serious harm would happen to him in Egypt, he claimed that he might be detained, insulted and tortured, and his current [organ] treatment wasn’t available in Egypt. The officer ([name deleted]) would detain and torture him because he had a big store for food [products]. He had an employee and a merchant buying and selling with him who was a MB member.
Asked again why the police would detain and torture him, he claimed that because he was dealing with the MB merchant and his employee was related to the police officer and when he sacked his employee the police officer harassed him – at one stage he detained the applicant in the police station for three days and hit and electrocuted him. He denied having a relationship with the merchant other than purely commercial.
He also claimed that he needs a life-long treatment and he has a [age] year old son that he hasn’t seen. Asked again what the fear was, he claimed that he feared the treatment was not available in Egypt and was expensive and if he didn’t receive it he would die. Asked whether the treatment wasn’t available or was expensive, he said it was bot and the medication was made overseas, not Egypt. Asked again if it was not available or expensive, he said he was told it was not available.
Asked exactly what treatment was not available, he said it was the treatment that stopped him from rejecting the [organ] for the rest of his life. It was put to him that they did [organ] transplants in Egypt, and he claimed that it was only available for the very wealthy ones and they don’t do it from deceased persons, only live donors who were related.
Asked about the claim regarding the police, he claimed that because he sacked his relative he was jailed in October 2015, tortured him and sent his henchman to the applicant’s store. He applied for and was granted a visa to the [Country 1] in November 2015 and then applied for Australia and was granted a visa.
He sacked the employee because a friend told him the employee was a MB member. He employed the person from 2012-2013. He sacked him because of the fear and concerns at the time. A friend told him the employee sits with the MB and is one of them and the fact that the applicant had children made him scared of having the employee. Asked if he mentioned this MB employee during the DIBP interview, he claimed that he couldn’t remember. At the time he was doing [treatment] [but] couldn’t remember whether he mentioned it.
After he sacked him the police officer would come every week, looking in his store and telling customers not to come. It affected his store and he lost lots of customers – the police officer came every now and then but would also send one of him men. They did this every week or ten days until October 2015 and then they detained and tortured him for three days. He closed the store and then applied for a visa. He left the goods in the store for his son – some customers then paid for these goods, others just took them.
Asked if his son was now running the shop, he claimed that his son was a student at the college and he left the store for his son. Asked again if his son was running the store, he claimed that he sold the shop and got the goods out and told his son to do whatever he wanted with them. If he had stayed he would have continue to have been harassed by the police.
The shop was now locked. Asked who owned the shop, he claimed that it was an inheritance. Asked again if he sold it or kept it, he claimed that he left it to his siblings and told them to sell it and use the money for his children who were going to the college. Asked how old his children were, he said they were [various ages].
Asked how many times he was detained by the police officer, he said it was only once. He was asked again if he was only detained once, and he claimed that people came every week or ten days to harass him. He agreed that he had a visa to the [Country 1] but he was told that in Australia there was safety and peace – people he knew in Australia told him this. He confirmed that Australia was safe and peaceful by researching on the internet.
Asked how he knew the people in Australia he spoke to, he claimed that they were friends studying and traveling in Australia. Asked how many people he knew in Australia, he said two or three – it was put to him that the way he described his contacts in Australia it seemed that he knew more people. He said there were two siblings and another person. They came a long time ago, were now Australian citizens and had children.
He didn’t stay with these friends when he came to Australia as they had their families with them, so he stayed by himself. Asked where he stayed when he came, he said he stayed in a hotel in the city for one night but was uncomfortable. He then moved around Sydney, sharing accommodation with people but then he had [organ] problems and needed [treatment] and as a consequence stayed on his own.
Asked where he stayed after the first night he arrived in Australia and how he found this accommodation, he claimed that he enquired around and then met an Arabic-speaking guy who put him onto another Egyptian who he stayed with for some days – he then stayed with other people.
Asked what his purpose was in coming to Australia, he said he was fleeing from Egypt and seeking protection. He was staying here for four months and then had the sickness. Asked whether he was seeking a [Country 1] visa for protection, he then said he came to Australia and wanted to stay here. He was again asked whether he got a [Country 1] visa in order to seek protection there and he claimed he applied for the [Country 1] visa normally but then people spoke highly of Australia so he came here. He was again asked his purpose for the [Country 1] visa and he said that he was seeking to escape from Egypt and go anywhere he could.
He was issued the [Country 1] visa [in] November 2015. Asked why he didn’t go to the [Country 1] immediately to seek protection, he claimed that there were too many Egyptians in the [Country 1] and wanted to get as far away as possible. Asked whether he knew there were that many Egyptians there when he applied for a visa to the [Country 1] in the first place, he claimed he heard that people had relatives in Egypt and thought there were too many people there. It was put to him that there were [number] people in the [Country 1] and he could have travelled there and applied for protection given he had a visa, eh claimed he would have if he didn’t get the Australian visa. He wanted to go anywhere. It was put to him that he didn’t want to go anywhere as he had a [Country 1] visa that he didn’t use which didn’t say much about how much serious harm he feared in Egypt. He again said Australia was better.
He agreed that he came to Australia to apply for protection. Asked when he applied for protection, he said that two or three months before his visa ran out he was given the name of a lawyer who subsequently deceived him and said things that weren’t correct in his application so he stopped using her. It was put to him that it was about three months after he arrived in Australia before he applied for protection which may mean there was an adverse finding as to the fear he had of the situation in Egypt at the time he left.
He claimed he was wondering what state was best to move to before he applied for protection. It was put to him that he had a visa for the [Country 1] in November 2015 and never left, then he said he had friends in Australia that he was talking to and he could have arranged these administrative details with them before he left Egypt so he could have applied shortly after arriving here. The Tribunal didn’t understand why he didn’t apply for protection earlier.
He claimed that he was conservative and didn’t tell his friends everything and he was oblivious to the procedures. He was trying to prevent problems. It was put to him that if he was planning to come to the [Country 1] or Australia to apply for protection he would have done some research prior to arriving about the procedures. He claimed he was oblivious to everything and felt he was safe once the plane left [Country 2].
Asked where his siblings lived in Egypt, he said they lived in [City 1]. His brother was a merchant and his sisters were married and lived with their families. Asked what he meant by merchant, he claimed that he buys and sells thing. He is away from him and doesn’t know much about him. He has [a] car and is a [Occupation 1]. He lives far away from the applicant, his wife doesn’t want him to be involved with the applicant’s children and to only look after his own. His children only have God.
Asked if he had ever been a member of the MB in Egypt, he claimed that he was only a sympathiser, never a member. They helped the poor people and applied Muslim laws. He was again asked and confirmed that he had never been a member of the MB. Asked how he accessed the health system in Egypt, he claimed that he didn’t have insurance because only public servants could get this. It was put to him that one could buy private health insurance, and he said it was too expensive to afford.
He was advised about s 424AA and it was put to him that in his DIBP interview he was asked whether he knew everything in his PV application and he said that he did as he had spoken to his lawyer personally, yet today he said he didn’t know what was in his statement, that there was no interpreter for his statement and it was never read back to him. He claimed that he was oblivious to everything and that his lawyer made everything up. He was telling the truth now.
It was put to him that in his DIBP interview he had made no mention of the MB employee, that he had sacked him or that he was related to the police officer. He had only said the police officer targeted the applicant because he was jealous of him for being successful. This could also go to issues of his credibility and call into question the truthfulness of his account. He claimed that the lawyer was responsible for the early inconsistency. It was put to him that the Tribunal’s question related to what he said at interview, not what was in his statement.
He claimed the truth was what he was saying now after he swore on the Qur’an. Asked why it was different to what he said to DIBP at interview, he claimed that he was afraid and his lawyer said she would come and didn’t, and he was confused. Asked if he knew he had to tell the truth and took an oath to do so, he said that he was telling the truth now. Asked again why he was telling two different stories at the interview and now at the Tribunal, he claimed that he was afraid.
Also under s 424AA it was put to him that today at hearing he claimed he had only been detained once in 2015 for three days but at DIBP interview he claimed he was taken in August 2013 and released after six weeks and that in 2010 before the parliamentary elections he was taken by police and detained for three days and that in December 2015 he was taken from his home and detained for two days. These inconsistencies could also go to issues about his credibility and that he wasn’t being truthful.
He claimed that the truth was what he was saying today. His lawyer had written down the other things before and made him say these things. Asked how she made him tell the untruths when she wasn’t there, he claimed that her husband told him what to say so he did. Asked if he knew what he was saying to DIBP at interview was wrong, he claimed he was afraid and didn’t know what to do and his lawyer took his money and didn’t do anything.
Under 424AA it was put to him that today at hearing he had said his brother was a merchant with a number of businesses who lived far away and they didn’t have a close relationship. Yet he told DIBP at interview that his brother operates his own [business], lives with and looks after the applicant’s family while the applicant was in Australia. He claimed that when he was in Egypt, his brother hired a [staff] and was coming to visit his family. After the applicant left his brother’s wife prevented his brother from coming to visit the applicant’s family or from contacting the applicant. It was put to him that he had told the DIBP that his brother actually lived with the applicant’s family, not that he visited them. He claimed that his brother was living with his own family.

Under s 424AA it was also put to him that he had said that he gave the shop to his wife to sell yet at hearing he said it was an inheritance and he had given to his siblings. This inconsistency could go to issues of his credibility as well as to his access to financial resources. He claimed that he wanted his wife to be with his siblings in everything in order that his siblings didn’t blame his wife of doing things (with the shop) behind their back.
Under s 424AA it was put to him that he had claimed to DIBP that he had been a member of MB from 1993-96 yet today he had claimed that he was never a member just a supporter. He claimed that his lawyer’s husband told him to say what he said but today he had taken an oath and was telling the truth. Asked if he had told the truth to DIBP, he claimed he said what the lawyer and her husband told him to say. He agreed that he wasn’t telling the truth to DIBP. It was put to him that he was expected to tell the truth at all times and that if he was willing to lie in the past then it was difficult for the Tribunal to believe he was telling the truth at hearing. He claimed that he took an oath at the Tribunal but didn’t take an oath at DIBP.
Asked what financial assets he declared to the Australian government when he applied for a visa, he said he declared the shop. He had nothing else. Asked if he had his bank account statements from Egypt, he claimed he had nothing left. It was put to him that his family must have accounts and he said they had nothing and he sent them money when he worked and he borrowed money from friends and sent it to them.
He has been unemployed for some time and a charity pays his rent and buys him food. They had been helping him for a year and he had been working – asked what work he was doing he claimed he was working [at various workplaces]. He was asked why he couldn’t work in Egypt to pay for medication, or his family work. He said that the medication either isn’t available or is too expensive – he also lacks immunity. His children were studying. It was put to him that he could also catch other diseases in Australia. He claimed in Australia they would send him to hospital, in Egypt he would die.
Asked if he had any relatives working overseas, he said he had nobody. When he was overseas in [Country 2] in 2005 he was only visiting – the lawyer said he was working but he wasn’t. His uncle who he was visiting had passed away from natural causes in Egypt in 2006. He was asked how people in Egypt who had [organ] transplants were treated post-operationally, and he said that most people didn’t survive more than six months or a year before they died. He asked to be referred to Ministerial intervention if his application was not successful.
He was asked to provide some country information regarding his claim that most people in Egypt died after a few months or a year. He said that was what he heard and it was not possible that he could not get such information. It was put to him that if he based this claim on no reliable information it was not likely to be given much weight.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a visitor’s visa [in] January 2016, and applied for protection on 1 April 2016. 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] year-old married male. He claimed that he feared being arrested, detained and imprisoned by the Egyptian government because he had been a member of the MB, and that he feared being detained, insulted and tortured because he dealt with a MB merchant and sacked an employee who was related to a local police officer.
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.
Prior to the hearing he claimed to be suffering from mental health issues and a letter was attached from a psychologist. The letter from the psychologist was dated 8 December 2020. It did not mention how long the applicant had been a patient, only stating that he had been referred to her by his GP. No other information relating to mental health treatment sought by, or given to the applicant previously had been provided to the Tribunal. The letter noted that he was stressed about his ability to fund his medication required for his transplant and because of his inability to support his family financially and emotionally.
I have taken into account the claim and the letter but lend them little weight in explaining the credibility issues the Tribunal had regarding his evidence. While I accept that the applicant is stressed given his medical situation and the fact he has been separated from his family for several years, no evidence was offered that he has had any longer-term treatment for mental health treatment while in Australia. There is nothing that indicates he suffers from any loss of memory that would account for the inconsistencies noted in his evidence.
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.
Credibility
Such were the inconsistencies in the applicant’s claims between his protection visa (PV) statement, his DIBP interview and his AAT hearing that it is difficult to determine whether he said anything that was truthful. I accept that the applicant’s migration agent was later sanctioned and suspended based on a number of complaints about the service she provided.
Nevertheless, her behaviour in other instances is not sufficient to explain the inconsistencies in the applicant’s claims, and while he claimed that she made claims on his behalf without his consent, I also note that many of these claims he repeated or said at the DIBP interview when he had no representation present. In other words he knew that what he was saying to the DIBP delegate was untrue.
I also note that at the DIBP interview he was asked whether he knew everything in his PV application and he said that he did as he had spoken to his lawyer personally. He made no attempt to correct anything in his application.
Some of the inconsistencies that indicate he lacks credibility as a witness include the following:
a.In his PV application he claimed that he had been a MB member since 1993; in his DIBP interview he said he was a member from 1993-96 and at the hearing he claimed he had never been a member, only a sympathiser/supporter;
b.At his DIBP interview he claimed that he had been detained by authorities on three occasions, including in August 2013 for six weeks; in his PV statement he claimed he had been held in August 2013 for six days. In his hearing he claimed that he had only been detained once, by the police officer, in October 2015, for three days; there was no mention of this in his PV statement. When he was asked to explain the reason for the inconsistencies he blamed his lawyer and her husband, an explanation that I have already not accepted for reasons set out above;
c.At the hearing, he claimed that his brother bought and sold things, had a [car] and was a [Occupation 1], they didn’t have a close relationship as siblings and that the brother lived far away. Yet at the DIBP interview he only claimed that his brother owned a [business], that his brother was not only looking after the applicant’s family while the applicant was in Australia but was even living with the applicant’s family in Egypt. This is indicative of a much closer relationship than the applicant has alleged during his interview; and
d.At the DIBP interview he claimed that he had given the shop to his wife to sell, yet at the hearing he claimed that it was inherited and he had given it to his siblings.
The number and nature of these inconsistencies must necessarily be taken into account when giving weight to any of the applicant’s claims.
Interest from police/Egyptian authorities
I do not accept that the applicant has had any relationship with the MB, is of any interest to Egyptian authorities for any reason, or that he has ever been detained. This all relies on his oral evidence which as I have shown above, lacks credibility. There are also a number of inconsistencies in his brief evidence which I outline below.
He variously claimed that he was a member of the MB throughout his time in Egypt, that he was only a member of it from 1993-96, and that he was never a member but only a supporter. Given he has presented three different accounts of his association with the MB and produced no documentary, photographic or other evidence that he had any association I am satisfied that he was never a member of the MB, had any connection to it or would be considered by the authorities to have an connections to it.
I also do not accept that a local policeman and his associates have or would target the applicant because he had dealt with a MB merchant or because the applicant had sacked the policeman’s relative in the belief that the employee was a MB member and the applicant would be associated with the MB by implication if he had continued to employ him. The applicant made no mention of the employee’s MB connections previously. Indeed, he had previously claimed that the policeman had targeted him because the policeman was jealous of the success (presumably financial) of the applicant.
[Country 1] visa/Delay in applying
The applicant’s actions were also not those of someone who was seeking to flee Egypt because of serious harm at the hands of the Egyptian police and authorities. He applied for and was granted a [Country 1] visa [in] November 2015. Yet despite claiming that he sought to flee anywhere to avoid serious harm in Egypt, he failed to travel to the [Country 1] even though he was able to do so. His claim that he didn’t travel because there were too many Egyptians in the [Country 1] had not previously been mentioned, and makes no sense given it is reasonable to assume that he would have checked this out before he applied for a visa, if indeed this was an issue that concerned him. It is also inconsistent with his claim in his PV application (folio 23) that his cousin reported him to [Country 1] authorities as a terrorist to stop him from traveling there.
The applicant then applied for and was granted a visa to Australia – again, he said it was in order to seek protection. Yet despite this, he took nearly three months to apply for protection. I do not accept that the delay was because he was deciding which state was best to settle in, or because he was oblivious to the procedures for applying for protection. He had been in contact with Egyptian friends who were naturalised Australians and he could have sought their assistance before or when he arrived. He also made no effort to research the procedures before he came to Australia which, given he claims to have come to Australia expressly to claim protection makes little sense and raises questions as to his true purpose for coming here.
[Organ] Transplant recipient in Egypt
The Tribunal accepts that the applicant is a member of a particular social group known as ‘[organ] transplant recipients in Egypt’. It also acknowledges that medical care in Egypt falls short of Australian standards and appreciates the applicant’s concerns regarding ongoing treatment and the financial difficulties he may face in Egypt. The Tribunal accepts that he continues to be on medication and is receiving regular reviews in Australia.
However, there was no evidence before the Tribunal to suggest that the applicant, as a [organ] transplant patient, will be denied access to medical care and services where such denial would threaten his capacity to subsist. According to the World Health Organisation, most of the population in Egypt has easy access to health care. The country has an extensive network of health facilities ensuring easy access to basic health services for its population (see World Health Organisation, Country Cooperation at a Glance: Egypt, 1 May 2018, (WHO country cooperation strategy at a glance: Egypt).
The Tribunal does not accept the applicant’s claim that the required medical treatment was unavailable or too expensive for him to access. The applicant, like millions of other Egyptians, may face challenges, dictated by general lack of resources and the socio-economic status of the country, in accessing quality medical treatment. But the applicant has described himself as a successful businessman and the Tribunal is not satisfied that he would be unable to afford the required medications. The Tribunal is also not satisfied that the applicant will be denied access to basic services where such denial would threaten his capacity to subsist.
I have taken into account letters from [a specialist] – the first one said he would likely die very prematurely rather than potentially living a longer and productive life in Australia. She was asked to provide more detailed information on which she based her conclusion and she did so in a letter dated 18 December.
I have taken into account her opinion and thank her for it. I accept that the medical system (particularly the public system) is much better in Australia than it is in Egypt and I also accept that the required medications and procedures are significantly more expensive in Egypt. I note that the doctor has not been able to check his financial situation in Egypt and has based her view on his inability to pay on anecdotal evidence from the applicant himself.
The applicant has described himself as a successful businessman and would have had to provide some financial records to obtain a visa to Australia. He has not provided any evidence to the Tribunal that would indicate that he is unable to pay for his medical treatment in Egypt and therefore the Tribunal is satisfied that he would be able to access medical treatment and medications to meet his post-transplant needs.
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 5J(6) 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 member of the MB, or that a police officer is targeting him for sacking the police officer’s relative, or that he would be unable to access medical treatment for his post-[organ] transplant condition, 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 individually or cumulatively 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.
…

[2021] AATA 729

11 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction