1716121 (Refugee)
[2024] AATA 3914
•14 August 2024
1716121 (Refugee) [2024] AATA 3914 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1716121
COUNTRY OF REFERENCE: Egypt
MEMBER:Christine Cody
DATE:14 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 August 2024 at 12:20pm
CATCHWORDS
REFUGEE – protection visa – Egypt – political opinion – opposition to the Muslim Brotherhood – protests in Egypt – political activity in Australia – social media activist – detention – charges of instigating to overthrow the regime – physical assault – arrest warrant – fear of killing – watch list for travel and arrival – return visits to Egypt – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 359, 424A, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
SUMMARY
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 July 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 his second (current) protection visa on 7 January 2016 (DIAC file: [number]). His immigration history is set out as follows:[1]
[1] Sourced from the applicant’s form and passport, and the delegate’s decision record provided to the Tribunal by the applicant and/ or Departmental records put to the applicant pursuant to s 424A of the Act
· 3 November 2007: student visa granted
· [November] 2007: applicant arrived in Australia on a [student] visa
· 9 March 2010: applicant applied for a partner visa (UK820/801) and was granted a bridging visa A (WA-010)
· 27 June 2010: student visa expired
· [July] 2010: applicant departed Australia on a bridging visa B (WB-020) (partner visa application was pending)
· [September] 2010: applicant arrived in Australia on a bridging visa B (WB-020)
· 25 November 2011: partner visa refused
· 8 December 2011: review commenced for partner visa refusal
· [August] 2012: applicant departed Australia holding a bridging visa B (WB-020)
· [November] 2012: applicant arrived in Australia holding a bridging visa B (WB-020)
· 11 February 2013: applicant applied for a protection visa
· 22 July 2013: protection visa refused
· 20 August 2013: review commenced for protection visa refusal
· 22 April 2014: protection visa refusal affirmed (Refugee Review Tribunal)
· [September] 2014: applicant departed Australia on a bridging visa B (WB-020)
· [October] 2014: applicant arrived in Australia on a bridging visa B (WB-020)
· 24 June 2015: partner visa refusal affirmed (Migration Review Tribunal)
· 22 July 2015: judicial review commenced for partner visa[2]
[2] This was refused 11 December 2017.
· [September] 2015: applicant departed Australia on a bridging visa B (WB-020) to travel to Egypt
· [November] 2015: applicant left Egypt legally using his passport issued [in] 2013
· [November] 2015: applicant arrived in Australia on a bridging visa B (WB-020).
As noted above, the applicant applied for his second, current, protection visa (second application) on 7 January 2016 ([file number]). This was refused by the delegate who did not accept that the applicant was a credible witness and did not accept his claims.
The current application dated 7 January 2016 - claims made to the Department
The applicant was represented by his then registered migration agent, [Agency 1]. They sent a letter to the Department dated 6 January 2016 enclosing the protection visa application forms, the applicant’s statement dated 4 January 2016, and a copy of some pages of his passport issued [in] 2013 (showing travel in and out of Egypt and Australia in 2014 and 2015, and his bridging visa B granted 25 September 2014).[3]
[3] He states that he lost his previous passport.
According to his application form, the applicant was born on [date] at Kalyobia, in the north of Egypt. He is an Egyptian national and has no other nationality or right to reside in or enter a third country. He is a Sunni Muslim.
In Egypt he finished high school in [specified year]. From [year] to November 2007 he worked part-time assisting his father [in his business].
From his date of birth until November 2007 (when he left to come to Australia the first time) he resided at [Address 1], Kalyobia. He returned to stay there when he visited Egypt between September and November 2015.
He speaks, reads and writes in Arabic, and speaks English (he did not state that he could read or write in English).
In Australia he studied the English language for 6 months (November 2007–February 2008), he started a [Qualification 1] and then studied[4] an Advanced Diploma in [Qualification 2], from July 2009 to January 2010.
[4] Although in his application form he stated that he completed the [course], he told the Tribunal at hearing that he did not.
His occupation is [occupation 1]; he has been working for [related] companies in Australia since September 2010; when he arrived in Australia (November 2007) until September 2010, he worked in a [business 1].
His family are stated to be: his parents, his brother [Brother A] born in [year], and his partner/wife [Wife A]. He refers to 2 relationships:
· Relationship commenced in November 2009, separated on 1 September 2011 in Sydney (this information relates to his Australian wife [Ms A], as discussed later);
· On 13 August 2010 he commenced a relationship with [Wife A]. They married in Egypt [in] August 2012.
He is in contact with his family regularly through social media such as [media specified] and Facebook.
Claims in statement sworn 4 January 2016
In his statement sworn 4 January 2016 he stated that he is relying upon the Convention ground of political opinion and he also relies upon complementary protection. It is noted that on 3 occasions in his statement (paragraph 11 and twice in paragraph 12) he references the marriage to his wife during the latest trip to Egypt from September 2015, and he stated that his primary purpose for returning to Egypt was to marry [Wife A], and that they married in October 2015.
The statement includes the following additional background and claims:
· My usual occupation is an international student.
· I continue to be a practicing Sunni Moslem.
· In 2012[5] I lodged a protection visa application on the basis of my political views, which was refused by the Department and the Tribunal.
[5] This appears to be an error as it was lodged in 2013 as set out in the delegates decision record provided to the Tribunal, as well as the applicant’s later produced Timeline.
· During my recent trip back to Egypt I married my current wife. My parents, my brother and my wife continue to reside in Egypt.
· I am lodging a repeat protection visa application, having recently returned to Australia from Egypt, on the basis of the mistreatment that I encountered during that trip.
Mistreatment I had faced during my recent trip to Egypt.
· At the time of my arrival at Cairo international airport, I was stopped by Egyptian airport intelligence and interrogated for approximately 5.5 hours. During the interrogation I was subjected to physical mistreatment and accused of being a political activist in support of opposition, including the Muslim Brotherhood.
· I was also accused of undertaking political activity in Australia and attending anti-government rallies. I was also extensively asked about a number of individuals who are known to me and are Egyptian nationals currently in Australia.
· I denied that I had any political affiliation or supported any anti-government group, including the Muslim Brotherhood. Despite my denials, the interrogating officer put to me information confirming my involvement in political rallies in Australia and previously in Egypt.
· I stated to the interrogating officer that I do not support any political groups or originations and that in the past I had posted many anti-Muslim Brotherhood articles in the social media as well as attending anti-Muslim Brotherhood rallies in Egypt during a previous return visit.
· Despite such assurances, I continued to be mistreated and forced to sign an undertaking that I would not participate in any political activity or have any association with opposition groups both in Egypt and abroad. After signing the undertaking, I was released and allowed to proceed on my journey to my parents' home in Kalubiya.
· On the same day I attended a medical centre in Kalubiya, for treatment of my injuries. I annex herewith a copy of a medical report.
· During my entire stay in Egypt, I feared participating or associating with any anti-government political groups or individuals. I mainly remained confined to the area of Kalubiya and avoided areas where there was political tension.
· I married in October 2015.
· I travelled back to Australia [in] November 2015, re-entering on my current student visa.
· During my exit from Cairo international airport [[in] November 2015 ], I was again subjected to further interrogation by airport intelligence for approximately 2 hours. During that occasion, I was again extensively questioned about my political activities during my stay in Egypt and my intended political activities overseas. I was also warned that I would be monitored by agents operating in Australia and that when I return to Egypt I would be immediately arrested.
Why I fear returning to Egypt
· I fear returning to Egypt, where I will likely be subjected to further interrogation, imprisonment and physical mistreatment on the basis of my political opinion and activities.
· Whilst during my previously visit to Egypt I completely refrained from participating in any political activities, since my arrival in Australia I have been very active at exposing the current regimes mistreatment of political opponents.
· I have been very active in the social media and on my private Facebook page, highlighting the degree of restrictions that has been place on political freedoms in Egypt as well as my recent personal experience with the intelligence.
· My own personal experience with the Intelligence compels me to highlight the degree of human rights abuses that are taking in Egypt.
Second statement of the applicant dated 2 May 2017
In his second statement, the applicant claimed as follows:
· Approximately 2 months ago, I contacted my wife by telephone who advised me that my [Brother A variant spelling] was detained by Egyptian security and is currently being held in detention. She said that she knows nothing else of the situation.
· I contacted my father and asked him why [Brother A variant spelling] was arrested and what he knows of his current whereabouts. My father was extremely anxious and informed me that he knew very little except that members of the Egyptian security arrested [Brother A] at his place of business and have shut down his [business]. My father assured me that he will continue to update me as to my brother's status.
· My father continued to provide me with regular updates including having visited him in detention and his subsequent release the following day.
· After my brother was released, I contacted him directly and enquired as to what happened and the reason for his arrest.
· My brother informed me that he was working at his [business] when he was detained by Egyptian security officers. He was extensively interrogated as to my whereabouts and my political activities overseas.
· My brother was hesitant to tell me more because he fears that the phone may be monitored.
· I subsequently requested my father to obtain an Egyptian police clearance to see whether there have been any convictions recorded against my name.
· My father attended the Interior Ministry and, through an acquaintance who is employed there, managed to obtain a States Security Prosecution record, which his wife emailed to him.
· The document states that I am wanted for investigation on charges, amongst others, of instigating to overthrow the ruling regime.
· I fear that should I return to Egypt, I will be immediately detained and charged with political crimes, which potentially carries a custodial sentence. I also fear that given the fact that the charges are political I will be subjected to severe or significant harm whilst in the custody of the Egyptian authorities.
The applicant provided a copy of an undated document in Egyptian handwriting entitled States Security Prosecution record which had no letterhead but contained 3 stamps. The translation, dated 29 April 2017, stated:
The accused [applicant’s name], unemployed, the mentioned is wanted to attended for the offence [number], insitigating to overthrow the ruling regime and facing the authorities, resisting police and attacking the public and private properties, governmental establishments, disturbing the public security. The said accused [applicant’s name], the accused for offence [number] attended the state security (emergency), has his name in the watching list for travel and arrival at all ports of Egypt Arab Republic (air, sea and land) for the foresaid case. Search for him is underway until arrested him and bring him to sit before the competent authorities.
The interview on 4 May 2017
The applicant attended an interview with the delegate on 4 May 2017.
Some of the interview was referred to in the delegate’s decision record[6] and is set out below:
[6] Provided to the Tribunal by the applicant.
· I confirmed with the applicant at the beginning of the interview that he understood his claims for protection and that they were his full claims for protection.
· I put to the applicant at the beginning of the interview that his claims for protection are similar or related to his previous application for protection lodged in 2013, I said to the applicant that information held in his previous application can be used as part of this protection visa application and the applicant indicated that he understood. I gave the applicant an opportunity to comment on any of the assessments made on his previous protection visa application and he indicated that the situation is different now because when his first application was being assessed, the Muslim Brotherhood were being removed from power and therefore it was seen that he could return to Egypt.
· The applicant was asked to provide further information in relation to why he cannot return to Egypt and he stated that he cannot return to Egypt because he will be arrested by the authorities if he were to return. His testimony indicated that since his last arrival in Australia, the authorities have issued a warrant or order to arrest him if he were to return. He stated that previously when he travelled to Egypt he was questioned for many hours and abused before being released. He stated that he was accused of being a member of the Muslim Brotherhood and being critical of the current government.
· I asked the applicant why he was detained and he stated that he was detained because at the time he had a long beard which led the authorities to single him out and detain him believing that he was a Muslim Brotherhood member. I put to the applicant that he currently has a short beard which would indicate that he would no longer be singled out and the applicant stated that if he were to forget to shave or if he was depressed and didn't shave, he would be arrested [he also stated in the interview that he would be seen on the streets as a troublemaker if he grew his beard].
· I asked the applicant if he had any evidence the support his claims for protection and he stated that he has provided a medical document stating the injuries he sustained whilst being held in custody. I put to the applicant that the document … does not indicate how he received the injuries and the applicant stated that the doctor refused to write that he was beaten by the authorities on the certificate because of possible adverse attention he may receive.
· I asked the applicant if there were any other reason why he would be a person of interest to the authorities and he stated that he would be arrested because of his political views. He stated that he has posted many politically sensitive comments on Facebook as well in group discussions with friends which has led to the arrest warrant on him. I asked if he used any other medium to communicate his political view apart from Facebook and he stated "no". I asked the applicant if he was part of any political groups or parties in Egypt or Australia and the applicant stated no, although he stated that he supported a group in Egypt which has now disbanded.
· I asked the applicant to describe his personal political opinion and his oral testimony was brief and vague. He indicated that he is against the current government because there isn't enough freedom and that it would be too difficult to find work and live in Egypt. He indicated that after the recent bombing of churches in Cairo, there has been an increase of security applied to all citizens making it very difficult to live in Egypt. I put to the applicant that a government is allowed to have stricter security measures applied to their citizens after terrorist attacks if they are applied to all citizens and the applicant stated that there are too many restrictions.
· I said to the applicant that I was concerned about the credibility of his claims for protection.
· I put to him that the document he has submitted as evidence that there is outstanding order or warrant for his arrest if he were to return to Egypt does not appear to be a reliable document. I said to him that the photocopy indicates that the order is handwritten on what appears to be notebook paper. I further put to him my concerns that there is no letter head. The applicant stated that it is a handwritten official document which is issued at the time in Egypt and stated if it were not genuine, there would not be any stamps.
· He further stated that the authorities in Egypt are monitoring all internet activity in Egypt and that anyone who is found to be critical of the government have been charged. I put to the applicant that there are millions of people in Egypt that that it would near impossible to monitor all of the internet activity for the purposes of charging people because of their Facebook comments. The applicant did not address my concern other than to state that the Egyptian government is monitoring all of its citizens.
· I further put to the applicant that he has returned to Egypt in 2014 and 2015, immediately after his previous protection visa application was finalised, which contradicts his claim that he fears returning to Egypt. The applicant stated that he returned to Egypt because the political environment was safer in those years, but he can no longer return to Egypt because he is wanted by the authorities.
During the interview the delegate asked about his social media activity and he said that he posted on Facebook. He said that the revolution in Egypt was achieved through Facebook and the authorities monitor everyone. The delegate asked if he had any screenshots and he said yes. The delegate asked him to forward them after the interview: these documents are discussed below.
Additional documents provided to the delegate
The applicant provided other supporting documents, namely a medical report from [Doctor A] dated 11 September 2015 handwritten in English which stated:
The patient was complaining from bleeding piles. They were infected. He was admitted to hospital and took antibiotics to stop the bleeding. He was discharged after the bleeding stopped and he should rest for 3 weeks until the infection subsides.
He also provided Word documents of what he stated were screenshots of Facebook activity (with translations) from December 2015 up until about July 2017.[7] The documents show Facebook posts in the name of “[Alias A]”. The posts are usually short (1 or a few sentences, sometimes longer). They are anti-police, anti-Mubarak, anti-Sisi, anti-government about the economy, political decisions, arbitrary disappearances/killings, oppression, corruption, and a lack of freedom. For example: “[details deleted]”; “we are a corrupt people”; “the government is dirty, God have mercy on the Martyrs”; “where is the right of the Egyptian?”; “we do not want Sisi”. The Facebook posts show minimal “likes” and/or comments as follows:
[7] The most recent postings were undated but were provided to the delegate after the interview and before the delegate made the decision on 11 July 2017.
· [In] December 2015: 1 “like”, 1 comment by [Mr A] asking whether the country has an army and an interior and 1 response by the applicant saying that this is his opinion and he is not swearing at anyone in particular” (the Tribunal was provided with this again on 31 May 2021 with another translation);
· [In] January 2016: no “likes”;
· [January] 2016: no “likes”/comments;
· [February] 2016: “liked” by 5 people, and 1 untranslated comment;
· [February] 2016: a post saying “tired now rest in 2063, [deleted]”. There are 4 “likes” and 1 comment from [a poster], “[deleted], hopefully you won’t receive the fodder” (later on 31 May 2021 the Tribunal was provided with the same post but with a different translation: “hopefully he will not receive the [food]”);
· [April] 2016: “liked” by 2 people, no comments;
· [April] 2016: no “likes”/comments;
· [April] 2016: no “likes”/comments;
· [August] 2016: “liked” by 2 people;
· [October] 2016: “liked” by 3 people;
· [October] 2016: “liked” by 1 person;
· [October] 2016: 1 “like”;
· [November] 2016: no “likes”’
· [November] 2016: 4 “likes”;
· [December] 2016: 5 “likes”;
· 4 posts on the previous Sunday: 2 had 1 “like”, 1 had 1 emoji, 1 had 2 “likes”;
· 1 post on the previous Thursday: no “likes”;
· 1 post on the previous Friday: “liked” by 4 people, with 4 comments (joking: “ha ha”) and the applicant’s final comment being “all my friends”;
· 1 he had posted “just now”: no “likes”;
· [January] 2017: 1 “like”;
· undated: no “likes”/comments.
There are also 3 pages of notes (political commentary containing references to Sinai and terrorism), undated, contained in the “notes” section of a phone with no evidence of posting/ publication.
Delegate’s decision record
As noted above the delegate did not consider the applicant or his claims to be credible:
· Considering the applicant’s testimony and supporting evidence provided, the delegate did not find him to be a credible witness, stating that he was brief and vague when asked to provide further information in relation to his political activities and opinions, and did not give any evidence as to why he would be targeted by the authorities aside from having a long beard, which he has since cut short. The delegate found that the applicant is not a highly politically motivated person, and did not accept that the applicant was detained by the Egyptian authorities upon his return to Egypt or that he has an outstanding warrant against him.
· Concerning the applicant’s handwritten prosecution document, the delegate referred to country information showing that document fraud is rife in Egypt, involving not only counterfeit documents but also official documents that have been obtained by way of bribes. Transparency International reports that petty corruption is widespread within the Egyptian police and is “rather common” in the judiciary. The existence of official corruption provides avenues for falsification of documents such as the one submitted by the applicant.
· The delegate noted that the applicant had forwarded evidence of his online political activity as evidence of his political profile. The delegate considered this should be given little weight having regard to concerns with his oral testimony noting it shows low-level political activities.
The delegate then considered whether the applicant has a real chance of persecution in the foreseeable future if he were to return to Egypt on the basis of his low level of political activity and if he may possibly be perceived as a member of the Muslim Brotherhood (MB) by the authorities, having regard to country information including:
· The Arabic Network for Human Rights Information reported in May 2017 that, while the crackdown on human rights defenders and political dissidents was expected to increase since the most recent imposition of the state of emergency, the majority of MB protest events held in April 2017 were in fact not subjected to security attack. The UK Home Office advises that mere membership of the MB is not sufficient to attract a risk of persecution in Egypt at the present time. This aligns with the Department of Foreign Affairs and Trade (DFAT) view that while ordinary members are likely to be monitored by the authorities, they face a lower risk of arrest than MB leadership figures and those actively engaged with the party.
· In relation to the applicant’s claim that he will be arrested upon arrival at the airport in Egypt, DFAT assesses that: “People who return to Egypt after several years’ absence will not face any adverse attention on their return on account of their absence… [P]olitical activities conducted by Egyptians abroad are usually noted by Egyptian embassies or other officials. However, only particularly high-profile cases (i.e. those that gain media notoriety in Egypt) are generally of interest to Egyptian authorities. Lower profile political activists may be questioned on return to Egypt, but are unlikely to be detained” (DFAT Country Information Report: Egypt, November 2015).
The delegate found that:
I have carefully considered the applicant’s profile as someone who talks about his political views on Facebook. The country information does not suggest that he is likely to attract adverse attention because of his low-level political activities, including in Australia. The country information also does not suggest an increased risk of harm to the applicant as a returnee from abroad or because he may be perceived to be a member of the Muslim Brotherhood.
Having considered all the available evidence and given the applicant's individual profile, and with reference to current country information, I am not satisfied that he faces a real chance of being persecuted in Egypt in the reasonably foreseeable future for reason of his political opinion.
The delegate did not accept that the applicant met the requirements for complementary protection.
The current Tribunal
The Tribunal has had access to documents/recordings contained in the Departmental file and the Tribunal file relating to the first protection visa application, his spouse visa application, and the current protection visa application and evidence provided to this Tribunal[8].
[8] The Tribunal also had access to PRISMS records which were put to the applicant pursuant to s424A of the Act but have not been relied upon in this decision.
The applicant lodged his application for review with the Tribunal, providing a copy of the delegate’s decision record and the notification letter. He was represented by the same migration agent. On 28 August 2018 the current migration agent was appointed to represent the applicant.
On 14 October 2020 the agent lodged an online AAT Withdrawal form. Then, on 20 October 2020, the agent sent an email asking to cancel the Withdrawal request. No explanation was provided at the time.
By way of letter dated 30 April 2021, the applicant was invited to attend a hearing on 1 June 2021, with a request that all documents be provided 1 week prior to the hearing. In response he indicated that there were no issues affecting his ability to attend a hearing, he would like the services of an interpreter, he and his agent would attend, and submissions would be provided.
On 26 May 2021 the agent requested further time to provide the documents on the grounds that there were many documents to be translated. After office hours on 31 May 2021 the agent emailed a significant number of pages of submissions and documents, including an updated statement of the applicant (dated 27 May 2021), a document entitled Timeline, screenshots on Word documents stated to be Facebook posts by the applicant and a recent [conversation], and a Marriage Certificate for the applicant’s marriage to [Wife A] (at that stage without a translation[9]).
[9] The translation was provided to the Tribunal on 31 August 2022
The applicant’s third statement (27 May 2021)
The applicant’s statement dated 27 May 2021 includes:
· I make this further declaration to the Tribunal to add to the Statutory Declarations made to the Department on 4 January 2016 and 2 May 2017.
· Since [November] 2015 I have not returned to Egypt.
· My daughter [named] was born on [date]. I have not seen my daughter, not even one day. I have been too scared to return to Egypt to see my daughter since her birth.
· My daughter will be [age] years old next month and she has never seen her father.
· I managed to speak to my daughter a few times on the phone. She doesn't know me; she thinks she does not have a father. [Details deleted] the only reason her mother contacted me was to get school fees.
· As I was unable to return to Egypt, my wife filed for a divorce based on abandonment. She is angry that I was unable to return to Egypt or bring her to live with me in Australia.
· She is also falsely accusing me of kicking her out of their matrimonial home and of exchanging our matrimonial home furniture. This is a civil case which could result in 3-year imprisonment for me if the court finds against me.
· The Egyptian courts have ordered that my wife is entitled to the house (which is my family's flat in my father's name, worth approximately 600,000).
· The court also ordered that I pay child support worth [amount] Egyptian pounds from the date of the Court order, [in January] 2020.
· My wife got her own family members, who do not know any real information about me to falsely witness in court that I earn between AUD [amounts] a month and hence the Egyptian courts ordered such a high child support payment from me.
· It is very rare that she allows me to speak to my daughter or know anything about her through messages.
· AII the above occurred as I am unable to return to Egypt due to my real fear of returning.
· I was terrified to leave Egypt the last time I went, I was scared to go through the airport again or to live normally. I stayed confined in Kalyobia.
· If I did not have a real fear of returning to Egypt, why would I have subject myself to all the above.
· I had family members who passed away in Egypt during the last period and I was not able to return (he named a number of relatives) and my parents are ill.
· I thought about returning to Egypt and I even contacted the Tribunal to cancel my appeal, I couldn't handle not seeing my daughter, but I couldn't, out of my fear. I know that if I return, I will be subjected to persecution.
· I am terrified with what truly happened with me before when I returned to Egypt and I fear for my life.
· I do have a political opinion against Egypt and against the Sisi government, but I am not part of the Muslim Brotherhood group or any group. As an individual I have been treated inhumanely because of this adverse political opinion and I have been physically harmed and threatened.
· There is no political freedom in Egypt, and I was too scared, when I was detained at the airport to even express my political views because I was already beaten, even when I denied these views.
· However, I express this political opinion out of anger for what is happening in my country and anger out of what happened to me personally.
· I have harmed my family, my brother, my father's health, my daughter. I lost my wife, my relationship with my daughter, my home in Egypt. I have lost everything.
· I am wanted for investigation by the security in Egypt and I know that I will get harmed and arrested if I return to Egypt.
The documents provided 31 May 2021
The screenshots on Word documents stated to be Facebook posts by the applicant[10] were in the name [Alias A], and generally comprised a few sentences, as follows:
[10] Two, not listed, were repeats that had already been provided to the Department
· A post from “Friday” (indicating [a] Friday [in] May 2021) although it is described as a post by applicant on [a day in] May 2017 after visiting the Egyptian Embassy in [city]. It appears to contain a photo of an Embassy plaque on the wall. There is an overlay on the post stating this is “from me [in May 2017]). The post stated that the country will never change, he waited an hour there and nothing new has happened and “you get treated like trash”. There are no “likes”/comments;
· A post (no date although it is asserted that it is a post by the applicant on [the day in] May 2017 and it contains an overlay stating this is “from me [that day]”). The post states that it is all “Capitano’s” fault, he is a failure, God will punish the oppressor and infidels”. There are no “likes”/comments;
· A post (stated to be made [in May] with no year specified, thus the year it was provided, 2021) However, the date [in] May 2021 is inconsistent with the overlay on the post stating the post is “from me [2017]”). The post states it is seeking freedom for accused founders of the country, referring to unjust imprisonment, the state does not fight for the youth and the justice system imprisons. There are no “likes”/comments;
· A post from “Thursday” (indicating [in] May 2021) stating that the government has made people starve, is inhumane, there is no freedom or justice;
· A post from “yesterday” (indicating [in] May 2021) stating that Sisi’s elections are not honest, the army supports Sisi: There is 1 “like”;
· A post from “Friday” (indicating the Friday [is in] May 2021) saying that “I am over it”, the treatment of the Egyptian Embassy in Australia is like rubbish. Let him be done with it for good. There are 5 “likes” and 2 comments saying may God help him.
· A post (undated but with a single comment made on “17 January” with no year specified, thus the year it was provided, 2021. There is an overlay on the post stating the post is “from me [in May]”). This indicates that the comment was made more than 3 years after the post The post states saying I spit on Sisi. There are 2 “likes”, and the comment [in] January 2021: “What is up [the applicant’s name]?”.
Also provided was:
· An undated screenshot on a word document from the phone of “[Mr A]” showing a conversation on “Sunday and Monday” (indicating the Sunday and Monday [in] May 2021) described as “Facebook conversation with [Mr A] on Sunday [and Monday]”. [Mr A] says that the applicant has become political, and the applicant’s father asked [Brother A] to get the applicant to call him. There is an overlay on the post stating the post is “from me [in May 2017]”.
· An undated screenshot on a word document of a conversation from “today”, between 6am and 7.47am (indicating this is from [May] 2021). It is described as a [messaging service] conversation between the applicant and [Person A] (the description does not suggest a date for the conversation) stating that his father is upset because of what he is writing, people spoke to his father who is afraid for him, and people are saying he may be put under surveillance because of what he is writing: “Acquaintances are looking at your posts and you should calm them down.” The applicant said he will and [Person A] should tell his father he will remove all his posts and all he has written and asks that his father not be upset with him. The applicant said this is the last time, he will not write anything else again.
Although there was a reference to a court order relating to proceedings taken by [Wife A] in the applicant’s third statement, the Tribunal was not provided with a translated version of this until 23 August 2022, after the second hearing. On that day, the Tribunal was provided with a document entitled “Decision” of the Complaint of [Wife A] (stated to be the complainant) against the applicant (the complainee) and his father (also the complainee) in relation to a property said to be the marital home (the contents of which are discussed further below in the credibility section) dated [in] March 2020.
The hearings
The Tribunal considered that it was appropriate to hold the hearings in this matter in person. The COVID pandemic led to delays in initially listing the matter for the first hearing, and in listing it for hearing a second time. There were further delays, which the Tribunal acknowledged and for which it apologised.
The agent provided a significant amount of documentation the night before the first hearing. It also became apparent at the first hearing that documents were being referred to by the applicant/agent that had not been provided to the Tribunal; this was remedied later.
At the first hearing (1 June 2021) the agent raised some concerns with the interpreting; the Tribunal made enquiries and accepted that there had been some errors made (specific errors were discussed and acknowledged by the interpreter, and no other evidence relied upon by the Tribunal was suggested to have been incorrectly interpreted). Given the concerns raised, the Tribunal offered to seek the services of a telephone interpreter. Initially the applicant said he objected to this because at the Departmental interview he had used a telephone interpreter; however the Tribunal requested a telephone interpreter and the applicant did not object to that interpreter and said that he understood. The Tribunal asked him to let it know straight away if there were any difficulties.
The second hearing was held on 19 August 2022. The Tribunal had asked the applicant a number of questions, and then after a break he requested to go to the hospital, with which the Tribunal agreed.
On 23 August 2022 the agent advised that the applicant had been discharged without any serious diagnosis. The discharge letter stated that he attended hospital on 19 August 2022, he had reported having chest pain (this had been occurring for about 8 months on an intermittent basis, occasionally on exertion and often not, and it usually settles with rest). He is to take aspirin and other medication and follow up with a doctor.
The third hearing occurred on 31 August 2022. At the third hearing the Tribunal asked the applicant about his health and he said he still has some pains, he will see a cardiologist. The Tribunal asked him to let it know if he wants a break, and it offered him a number of breaks. He confirmed that he understood the interpreter and the Tribunal reminded him to let it know if he did not understand. The applicant did not later provide any medical/health documents to the Tribunal.
At the end of the third hearing the Tribunal noted that there were concerns with the applicant’s credibility and claims and noting that there had been references to adverse information the Tribunal said that it would send a s 424A letter.
The s 424A invitation was sent to the applicant on 27 March 2024. The Tribunal had attached some documents to the s 424A letter (which were referred to in the letter) and it stated that if the applicant sought to be provided with any other document, he should let the Tribunal know. No request for further documents was made by the applicant. The comment and/or response was due on 10 April 2024. On 9 April 2024 the applicant sought an extension of time until 17 April 2024 to respond to the letter including to obtain a letter from his psychologist. The Tribunal agreed.
On 17 April 2024 the applicant provided his comments/response to the Tribunal in the form of a statement signed and dated 17 April 2024. It was stated that a further report (from the applicant’s psychologist) would be provided in 2 days. This did not occur and is referred to in more detail below (see “Other matters”).
Some evidence from the hearings
The Tribunal has set out below some of the evidence from the hearings; other evidence is referred to elsewhere in this decision.
The first hearing evidence
The applicant’s evidence at the first hearing included as follows:
· The applicant said that he arrived in Australia in 2007 as a student. The Tribunal asked how long he studied for and he said that he was unsure of his studies, but he thought that he studied an English course for 6 months and then 1 year of [Qualification 2] and in order to renew the visa he had to enrol in another course, so he then went to study [another course]. This is the last thing he studied, and he only attended for 1 term, finishing in 2009 or 2010. The applicant said that although he stopped studying, he remained in Australia. He said, “I just didn’t attend the college while my course was going on; I paid the money for it”. The Tribunal the applicant was asked why he didn’t go home once he stopped studying. He said that he liked this country and he wanted to settle down here.
· When the applicant returned to Egypt in 2010 he lived with his family. Nothing happened during that trip, he just visited family.
· He said that his marriage to [Wife A] was a love marriage; her brother is a friend of his brother. They started the relationship in 2011/2012, before he went back to Egypt. He clarified that their courtship started on his first visit back to Egypt (thus in 2010). He talked to her family as he was interested in their daughter. Her family were asking him about his situation, for example what work he does, and they were concerned about him being in Australia. There was no agreement for him to bring her to Australia. He told them that he loves her and they are going to live together and he will come for a visit from time to time. Ever since the relationship started their love continued.
· Return in 2012: The Tribunal asked what happened when he returned to Egypt in 2012 and he said his father was very sick and also he got married at that time. When asked if anything else happened he said nothing else happened.
· Worries/concerns prior to 2012: The Tribunal asked the applicant whether he had any worries or concerns before he returned in 2012 and he said yes, but his father was very ill and so he had to make sacrifices and go back. When the Tribunal asked the applicant what caused the worries or fears before he went back in 2012, he referred to the country conditions generally, saying words to the effect of: the fear was about politics; the whole country was engaging in demonstrations and protests and there was political instability and he felt unsafe to express his opinion and when he went back it was not easy to express himself. He was at the time completely opposed to the MB concept, mentality, and principles and their politics. He then said that he made his first application for protection because he knew they wanted to implement Islamic rule at the time and they will consider him as ungodly and a non-believing Khafir. He said that before they came to power, MB were struggling for 17 years to create a state in Egypt and at the time they tried to brainwash the country. They wanted the whole country to be part of MB and for all men to grow a beard and women to have to wear a Burqa and not work and there would be no freedom at all when they came to power.
· The applicant said that he did not consider that he and his wife [Wife A] were separated at any stage between 2012 and 2016. They were separated in 2016 and they did not get back together between 2016 and 2019. The relationship ended in March 2019; he had been sending money to her but then he did not send her money so she took her belongings and went to live with her family.
· He said there were court proceedings; the Tribunal asked what they were and he said that she wanted a divorce and she is waiting for a decision from the court. The court investigated him and she told the court he is not giving her money and he has been away from her for 6 years now. Her cousin and brother testified against him. He said that his [Brother A] is his solicitor, and he told him there is a hearing date, however he doesn’t know anything about it because he is far away.
· The applicant said that his brother started to practise as a solicitor in 2015. When asked if his brother had had any difficulties in practising law he responded that he doesn’t know if he has any problems. He resides with their parents in their [family] home: the parents live in one apartment and his brother, sister-in-law and children live in another one. The other apartment was for the applicant. His father is still sick and remains at home. His mother suffered [medical conditions], and stays at home with his father.
Fears upon return: The applicant fears returning to Egypt because his political opinion is that he is against the government and Sisi regime and there is no freedom of speech. In Australia he can express his opinion but he can’t express it over there, there is no protection. He is sure the government will not protect him if he expresses his opinion. The situation is complicated and no one can express their political opinion or they may be detained and he cannot be free to express his opinion. He noted that when he went back in 2015 he was bashed and they took him and interrogated him for 2 hours.
The Tribunal asked about what happened in 2015. He said that he was stopped at the airport and they took him for questioning and they treated him inhumanely, he was humiliated and abused even bashed and they told him that he was joining protests in Australia, including a gathering that he attended [in] June 2014, and other protests/demonstrations which he denied.
The Tribunal asked how many protests/demonstrations he has attended since he has been in Australia (2007–2021) and he said 3, he had attended an anniversary of an incident [in] June. The Tribunal asked why he had only attended 3 times in all the years he had been here and he said it may be because of his work.
When the Tribunal asked the applicant if he had any other fear or worry about going back to Egypt, he said that his wife is suing him in the court and he hasn’t seen his daughter for 6 years.
The second hearing evidence
When the Tribunal asked whether there were any updates. The applicant referred to the ticket he had purchased to travel back to Egypt (dated [in] September 2020), and he said that he had booked this to see his daughter but then he cancelled it because of what he faces back there.
The Tribunal asked whether there were any other updates and he responded that he lost everything, his wife formally divorced him and he doesn’t exist in his daughter’s life as he can’t see her.
He remains fearful of returning; there are some people who have passed away, and he would also like to see his parents; he would have gone back if he could have, but he can’t because he will be arrested if he goes back; he would be arrested as soon as he arrives at the airport as he is on the airport list and he would then disappear and no one would know where he was.
Further evidence as to what happened in 2015 included that his name has been on the airport list ever since he left Egypt (in 2015) so if he returns he will definitely be arrested. When he was last interrogated they told him if he comes back he will be arrested. When asked if he knew why they said he would be arrested if he returns to Egypt, he said that it is because of his political opinions, he posted them on social media and they said they are watching him, they have eyes everywhere. They put pressure on him and insulted him and he told them he knew nothing.
When asked whether the authorities knew about specific social media posts he had done, he said they arrested him for a general political opinion not anything specific. However when the Tribunal asked if he thought they had seen his social media posts he said yes. The Tribunal asked why he believed that and he said they told him that he had insulted Sisi and the government. He said there was nothing more specific.
He said they asked if he knew people in Australia. They did not discuss anything else. They were inhumane and he was released after 5.5 hours. They did not accuse him of anything else but they made him sign an agreement and he was released.
When asked if he had injuries after he was released from that first detention in 2015 he said there were bruises on his face and back. When asked if there was anything else he said they hit him in the ribs.
The applicant’s fears about returning to Egypt[11]
[11] The evidence about his fears was taken in the second and third hearings.
The Tribunal asked the applicant all the reasons why he fears returning to Egypt. He listed the following reasons: “(1) Arrest that could happen to me. (2) I might be put in jail and killed inside. (3) Accuse me of any matter of any case either political or not political. (4) Just fearful for my life.” When asked to expand upon these, he said:
· The airport authorities will arrest him, no one will know because his name is on a list at the airport. They will refer him to the government. The reason is because of his political opinion.
· When asked why he would be put in jail and killed inside, he said it is for the same reasons as the first fear, namely his political opinion.
· When asked why they will accuse him of any matter of any case either political or not political, he said that they will accuse him of being a traitor. When this was repeated back to him at the third hearing, the applicant said that he did not say that he would be accused of being a traitor, he just said he would face harm because of his political opinion.
· When asked if he wanted to say anything further about being fearful for his life he said that if he wasn’t, he would not have stayed 7 years here without going back to Egypt.
He confirmed these were the only fears about returning.
When asked to confirm how he expresses his political opinion, he confirmed that he does this through Facebook posts or [a messaging service]. When asked if there was anything else he would like to say about his expression of his political opinion he said that social media is the only way to express political opinion and social media is accessible to everyone. He said his postings were public.
The applicant claimed that he has continued to post his political opinions on the same Facebook account, nothing has changed. When asked if he has ever stopped posting anti-Sisi/ government messages, he said only once since he returned in 2015 at the request of his father. He stopped for 1 month when his brother was arrested, they interrogated his brother and the shop was closed. He said when life became normal he started posting again. He said he makes normal posts and sometimes he comments on country conditions.
The third hearing
The Tribunal continued to ask questions about his fears upon return, and asked questions about his marriages, divorce and proceedings with [Wife A]. The Tribunal put numerous concerns about his claims and credibility, noting that it had not made up its mind. It discussed relevant country information with him.
Further relevant evidence and information is set out below. Having regard to the time since the first hearing the Tribunal has listened to the evidence again.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department, who accepted that he was an Egyptian citizen and national, and assessed his claims against Egypt. It was also provided to the Tribunal. The Tribunal accepts that he is a national of Egypt, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Egypt.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about inconsistencies, and changing evidence and claims about the current and past proceedings, which undermined his credibility and claims about his circumstances in Egypt and in Australia.
The Tribunal’s concerns in this regard are set out below:
The applicant’s preparedness to return to Egypt in 2020
Firstly, the Tribunal considered that the applicant’s proposed withdrawal of his review application on 14 October 2020 and his proposed return to Egypt undermined his claimed political profile and that the authorities had an adverse interest in him, as well as the reliability of the prosecution document. In this regard it notes that in 2017 the applicant claimed in his second statement that, as he was now aware of the existence of that document: “[Upon return] I will be immediately detained and charged with political crimes, which potentially carries a custodial sentence. I also fear that given the fact that the charges are political I will be subjected to severe or significant harm whilst in the custody of the Egyptian authorities.” The document stated that the applicant was officially wanted for prosecution for “instigating to overthrow the ruling regime and facing the authorities, resisting police and attacking the public and private properties, governmental establishments, disturbing the public security… [he] has his name in the watching list for travel and arrival at all ports of Egypt Arab Republic (air, sea and land) for the foresaid case. Search for him is underway until arrested him and bring him to sit before the competent authorities.”
However, the Tribunal noted that the applicant referred to his ticket to return to Egypt at the second hearing and his request to withdraw the review proceedings in October 2020. He had booked a one-way ticket back to Egypt. He said this was to see his daughter. The Tribunal put to him that it doesn’t make sense that he would travel to Egypt because of his claim that he is a wanted man, and his evidence to the Tribunal that he has been on the airport list since 2015. If his claims were true, then he would be detained at the airport and he would not even get to see his daughter. He responded after he booked, he cancelled it because he knew he would not be able to make it out of the airport. The Tribunal does not find this explanation persuasive. It notes that he did not just book a ticket back to Egypt; he also requested that the Tribunal withdraw his review application, and it was only some 6 days later that the Tribunal was informed that he had changed his mind.
While acknowledging the applicant’s desire to see family members/his home country, the Tribunal considers that it is highly unlikely that he would have decided to withdraw his application for review and travel to Egypt if his claims about the authorities and their attitude towards him were true, including the circumstances of his previous (2015) detentions, interrogation and mistreatment at the airport, that he is on an airport watch list for immediate transfer to the authorities for political charges and will face severe/significant harm (or death) in the custody of the Egyptian authorities, and that since he had signed an undertaking not to make adverse social media comments in 2015, he had been active in posting, thus maintaining his political profile.
The Tribunal considers that the willingness to withdraw his review application and his preparedness to return to Egypt undermines his claimed actual or imputed political profile through social media postings or for any other reason and the claim that he faces a real chance or a real risk of harm for any reason from the authorities or anyone. This also undermines his credibility.
Concerns with the applicant’s claims relating to the breakdown of his second marriage
Secondly, the applicant gave changing and inconsistent evidence about the consequences of the end of his marriage to [Wife A] including orders made by the court.
In his updated statement sworn 27 May 2021 he claimed that his wife filed for a divorce based on abandonment; she is falsely accusing him of kicking her out of their matrimonial home and of exchanging their matrimonial home furniture. This is a civil case which could result in a 3-year imprisonment for him if the court finds against him. The Egyptian courts have ordered that his wife is entitled to the house (which is his family’s flat in his father’s name, worth approximately 600,000 Egyptian pounds). The court also ordered that he pay child support worth [amount] Egyptian pounds from the date of the court order, [in] January 2020.
This however was undermined by his evidence given 4 days later at the first hearing (1 June 2021), as he omitted to refer to this at all, despite two separate opportunities to do so:
·At the first hearing the Tribunal asked the applicant what is the worst thing that could happen to him as a result of or concerning the proceedings taken by his wife. He said that he doesn’t know, but he could imagine his wife may confiscate the apartment or she might not give him access to his daughter and he hasn’t seen her for 6 years, that is his fear. He also claimed that 1 month ago when he had a conversation with his brother-in-law about school fees, he threatened that if the applicant returns to Egypt, he won’t let him come back again to Australia. The applicant said this was “an obvious threat”.
·At the second and third hearings the Tribunal asked the applicant what he feared and why; however he did not claim to fear harm due to his wife or her brother, and when he did say that he feared being placed in jail, the reason for this was due to his political opinion, not because of proceedings taken by his wife. The evidence about these fears was taken at the second and third hearings, and given the second hearing had been adjourned the Tribunal had checked his responses again at the third hearing and he had made no mention of a fear of imprisonment due to proceedings being taken against him by his wife.
The Tribunal put to him that his evidence to the Tribunal 4 days later was vague about the consequences for him, and made no reference to a concern that he would be jailed for 3 years if the court found against him. It noted that his evidence undermined the clear consequences for him set out in his statement. The Tribunal put to the applicant that he failed to mention to the Tribunal the matters in his statement on 2 separate occasions, firstly when he was asked what he feared or worried about going back to Egypt and secondly when asked by the Tribunal what would be the worst thing that could happen to him concerning proceedings taken by his wife. In response he said that he thought that because he had mentioned it in the statement he had done that and he didn’t need to repeat it again. The Tribunal does not accept this explanation. It had not asked the applicant to tell it the worst thing that could happen while ignoring what he had said in his update statement. Further, this explanation is undermined by the fact that he did mention in his evidence to the Tribunal a concern about the apartment, which he had also mentioned in his statement. However, the difficulty with that evidence was that it was inconsistent (27 May 2021: he claimed that the court has ordered his wife is entitled to his apartment v 1 June 2021: he doesn’t know about the court proceedings, but he could imagine his wife may confiscate the apartment).
The Tribunal considers that if the applicant had genuine fears resulting from a breakdown in his relationship, he would have given consistent evidence about those fears within the space of 4 days. The Tribunal considers that his failure to do so undermines his claims that he has any fears related to the breakdown of this marriage.
Further, the Tribunal was concerned that the applicant made a new claim at hearing (1 June 2021) about a threat from his brother-in-law made to him one month earlier, which he failed to mention in his updated statement (27 May 2021).
The Tribunal put to the applicant that he had just completed a statutory declaration providing updated information and he didn’t mention this at all. In response he said that he didn’t mention this because it happened a couple of days ago, and it is not very important for the Tribunal to know, it is a conversation between his brother-in-law and him and no one knew about it. The Tribunal does not accept this explanation. He told the Tribunal it was an obvious threat; it was only when his failure to mention it was put to him that he appeared to minimise it, and change his evidence as to when the conversation occurred. The Tribunal notes that his updated statement mentioned that his wife’s relatives had given evidence against him. The Tribunal considers that if this threat had occurred, it is reasonable to expect that it would have been mentioned in his updated statement. The Tribunal considers that the above undermines his claim that he was threatened by his brother-in-law, and his credibility.
Further, the Tribunal was concerned with the applicant’s claim he could face 3 years in jail relating to the furniture. The Tribunal asked the applicant how he could be placed in jail for 3 years; it asked whether this was a criminal offence. He said that it is like a legal agreement, when they got married they listed all the items in the household and she can sue him for the belongings when they get divorced and if the household is not there anymore she can sue him for deserting. At the third hearing the Tribunal asked the applicant for further information about this claim. He said that she is accusing him of taking the furniture and he can be jailed for 3 years because he had “wasted” the furniture in the apartment, it is a law in the Family Court back in Egypt.
The Tribunal asked if he had any document showing the details about this. He said that his brother is following up with this case in the court, there is no sentencing yet and he did not provide him with any documents yet about this. The Tribunal put to him that he had made this claim in his statement to the Tribunal over 1 year earlier, it is a very serious claim, and it wondered why he had not produced to the Tribunal any document to support his claims that his wife had lodged proceedings which could lead to him facing 3 years in jail. He responded that the case is not over yet and they are trying to reconcile or reach a conciliation or agreement before taking the next step before it goes before a judge, and they are trying to give money in a friendly way. The Tribunal put to the applicant that it seems speculative that he would face 3 years in prison. He said that he is not speculating, there is a law there and if they cannot solve it in a friendly way it would go to a court and he can be put in prison.
The applicant did not provide any documentation in this respect. The Tribunal notes that the applicant claims that his brother is his solicitor, and he did not claim that his brother had experienced any difficulties when practising law. He claimed that the proceedings which risked his imprisonment for 3 years had already been commenced in the court; and yet he provided no evidence of this to the Tribunal (although he did provide a different document stated to be a court order relating to the home to the Tribunal). The Tribunal did not find his explanation for the lack of documentation to support this claim to be persuasive and it considers that this undermines his claim that he faces a chance or risk of facing 3 years in prison as a result of proceedings commenced by his second wife.
Further, the Tribunal was concerned that the applicant gave evidence about the court proceedings which was inconsistent with the court document he produced. As noted above the Tribunal was provided with a document entitled “Decision” dated [in] March 2020 on the Complaint of [Wife A] (the complainant) against [the applicant] (the complainee) and [his father] (also the complainee) in relation to a property said to be the marital home.
This document referred to [Wife A’s] request to obtain the marital home and stated: The property under dispute is the marital residence of the complainant and the complainee, who was occupied with their residence until the start of the dispute between them, which requires the marital bond between them to remain, in order to be able to share the house and prevent each other from disputing and others in that.
The order made by the court was that: the complainant and complainee share the marital home [from] [March] 2020 and prevent each other from disputing and others in that.
Thus, as at [March] 2020 the court had ordered that the home be shared jointly between the applicant and [Wife A]. No other court order had been produced. The applicant had provided the untranslated version of this order to the Tribunal on 1 June 2021, and he had provided the translated version of this to the Tribunal on 23 August 2022, which indicates that he must have known the result of the court order when he was giving his evidence at the third hearing (31 August 2022). However, at that hearing he told the Tribunal that his wife obtained/took their matrimonial apartment by way of court order, the court gave her the whole apartment because she was looking after the child, it was thus taken from him.
The Tribunal put to the applicant that his evidence was inconsistent with the court order he had produced; it read out to him the relevant part of the court order; and it noted that the court did not order that his wife was granted rights to the whole of the apartment.
The applicant then changed his evidence in response: he no longer claimed that she had been successful in taking the apartment from him by court order; he said that because they cannot live together at the apartment (under Sharia law) as they are no longer a couple, he had given her the apartment. The Tribunal considers that the applicant changed his evidence to respond to concerns put to him which undermines both his credibility and the court document he produced. The Tribunal considers it reasonable to expect that the applicant would give consistent evidence as to what had occurred in the court proceedings and with the apartment. The Tribunal considers that his changing and inconsistent evidence undermines that there were or are any proceedings between himself and [Wife A]; it undermines that he and/ or his father have lost or had taken from them the apartment; it undermines his credibility; and it undermines the reliability of the court document.
Concerns relating to the applicant’s evidence about the details of his detention in 2015
Thirdly, there were concerns with the applicant’s evidence about the details of his arrest/detention at the airport in Egypt in 2015, as set out below.
The applicant told the Tribunal that before his detention at the airport in 2015, he had posted his political opinions on social media. When the authorities detained him, they informed him that they knew about this, they are watching him, and if he came back to Egypt, he would be arrested.
However, his evidence as to what he had been posting before this detention was not credible, because when the Tribunal asked for the details about the political opinions he had expressed before this detention, he said that he had been posting about events that had occurred in 2017 (he said he had been opposed to the government asking people to buy shares when they started rebuilding Suez Canal in 2017).
The Tribunal put to him that it is not possible that the authorities would have known in 2015 about postings he made about events that did not occur until 2017. The applicant did not engage with this concern; he then said that he had been opposed to their campaigns to arrest politicians.
The Tribunal does not accept this as an explanation. The Tribunal considers that his evidence undermines his claim to have posted political opinions on social media that the authorities were aware of, and interrogated him about, when he was detained in 2015. This also undermines his credibility.
Further, the applicant’s claim that the injuries he suffered while detained and interrogated were evidenced in the medical report he provided was inconsistent with the actual medical report itself.
In this regard, the applicant claimed, in his January 2016 statement, that on the same day he was released from detention, “I attended a medical centre in Kalubiya, for treatment of my injuries. I annex herewith a copy of a medical report”. At the second hearing the applicant had also stated that after having been beaten at the airport in 2015, he had injuries which were referred to in the medical report. However, as put to the applicant at hearing, that medical report that he provided did not refer to injuries. Instead, the medical letter (referred to in paragraph 20 above) referred to the applicant having an infection in his piles which had led to bleeding so he had attended hospital.
The Tribunal would expect that if the applicant had received injuries as a result of being detained, interrogated and beaten by the authorities in Egypt, and if he had attended upon a doctor the same day and had obtained a medical report specifying the injuries, he would not have twice claimed that the medical report he produced was evidence of his injuries through beating.
The Tribunal was further concerned because the applicant then changed his evidence when the Tribunal put to him that his evidence was inconsistent with the report: he said that he suffered internal bleeding because of the hitting but the bruises were on the outside, in the ribs. This does not explain why the report states that his piles were bleeding because of an infection.
100. The Tribunal notes that during the delegate’s interview the applicant claimed that the doctor could not write in the report that the applicant had been beaten by the authorities. The Tribunal has considered this explanation however if this was the case, it is reasonable to expect that the applicant would have told this to the Tribunal. The Tribunal does not give that explanation any weight.
101. The Tribunal considers that the applicant’s inconsistent and changing claims about the evidence of his injuries undermines his claim to have suffered injuries through beating while being detained and interrogated, and it also undermines his credibility.
102. Further, the Tribunal considered that the applicant gave evidence which was inconsistent with the country conditions at the time, and which undermined his claim that despite his political profile, the authorities released him and allowed him to return to Australia.
103. In this regard, the applicant told the delegate at interview that the reason he was detained was because he was suspected of being a member of the Muslim Brotherhood, because he had a long beard which led the authorities to single him out and detain him; they asked him if he was a member of the Muslim Brotherhood party and started checking his laptop and phone[12].
[12] The Tribunal had been concerned that the applicant had not claimed at hearing that this was the reason why he was singled out for detention; this was put to him at hearing and in the s424A letter. The applicant claimed that when he said at hearing that he was singled out for detention because he was suspected of being against Sisi and the government, this is the same as being singled out as a suspected member of the Muslim Brotherhood (who all had to grow beards). The Tribunal gave the applicant the benefit of the doubt and accepted this is what the applicant meant.
104. He told the Tribunal that the authorities interrogated him because of his anti-government profile and they beat him. He also claimed that his name was on the list and that the authorities already believed that he had engaged in adverse political activities in Australia; he said that he joined the Rabaa demonstrations. The Tribunal put to him that he had also claimed they knew he had been posting his opinions on social media and he agreed. He said that he was told that if he returned to Egypt he would be arrested. Given they already had him in custody, the Tribunal put to him that it was difficult to understand why he was released and permitted to return to Australia if his name was on the list and if he has the kind of profile claimed. He responded that after he left Egypt they put his name on the list. The Tribunal again asked why they would have let him go, given they told him that he is doing activities that they do not like in Australia. He did not engage except to say they told him whenever he comes back to Egypt they will be watching and monitoring him.
105. The Tribunal put to him this concern again. He responded that when he was in Egypt he didn’t post. The Tribunal put to him that this does not alter the claim that when he was in Australia he claimed to actively post anti-government material, yet the authorities were releasing him and letting him return to Australia. The Tribunal put to him that as he was able to leave Egypt, this may indicate that he does not have the kind of profile claimed. He responded that because he signed an agreement/undertaking that he will not post anything against the government on social media, they released him.
106. While it is possible that the authorities considered making the applicant sign such an agreement was enough to stop him posting in Australia, this appeared to be contrary to the evidence of how those who were suspected as Muslim Brotherhood/ anti-government/ anti-Sisi supporters/activists were being dealt with by the authorities at the time. In this regard, the applicant had provided to the Tribunal the delegate’s decision record which contained references to the country conditions existing around the time of his detention in 2015:
· “In November 2015 the Department of Foreign Affairs and Trade reported that:
Since the removal of [leading MB member and Freedom and Justice Party presidential nominee Mohammed Morsi] from power by military coup in July 2013, and the 14 August 2013 violent dispersal of two large protest camps of Morsi supporters in Cairo, Egypt's security apparatus and courts has carried out a significant crackdown on the MB.
On 25 December 2013, the Egyptian Interim Cabinet declared the MB a 'terrorist organisation' under Article 86 of the Egyptian Criminal Code. Article 86 allows the government to proscribe a broad list of activities, including: the threat or use of violence against citizens and the state; 'preventing or obstructing the functions of public authorities, houses of worship and public institutions, or disabling the application of the constitution, laws or regulations'; and 'damaging national unity and social peace'. According to Article 86, membership of a designated terrorist group may incur penalties of up to five years imprisonment. On 29 December 2013, an Interim Cabinet spokesman affirmed that all MB members were subject to Article 86, under which those engaged in terrorist activities face life imprisonment with hard labour or the death penalty.
Since the designation of the MB as a terrorist organisation, courts throughout the country have handed down a series of harsh sentences (including the death penalty} in mass trials of those charged with participating in violent protests or riots following the military takeover.
Defendants in these trials have included not only MB members, but also supporters and sympathisers, and those merely in the vicinity of the protests.
DFAT assesses that MB leadership figures and MB members who continue active engagement within the outlawed party are highly likely to be arrested and prosecuted. Ordinary inactive MB members, party supporters and those with family links to MB members face a lower risk of arrest. However, they are still likely to come under the close attention of authorities and be subject to surveillance and monitoring of their activities.”
· The delegate then stated “This assessment is corroborated by a range of sources, including the already-cited UK Home Office report:
Many hundreds of MB members have been killed or injured during protests, while thousands have also reportedly been detained, some in unofficial places of detention. There are also reports of MB supporters dying in police detention, instances of persons tortured to death and other a/legations of killings in prisons and detention centres.”
· The delegate then referred to the 2017 World Report, Human Rights Watch report which stated:
Officers of the National Security Agency routinely tortured and forcibly disappeared suspects with few consequences. Many of the detainees who suffered these abuses were accused of sympathy with, or membership in, the Muslim Brotherhood, which the government named a terrorist group in 2013 but has remained the country's largest opposition movement.'
107. Thus, the country conditions indicated that a person of the profile claimed by the applicant may not have been released once he was in the custody of the authorities.
108. When it was put to the applicant that a person of his profile would have probably been kept in the custody of the authorities (arrested, prosecuted, or killed or disappeared), he said he agreed that people in positions such as himself were normally being disappeared. However, he said, they did not find the evidence on his laptop or phone. He also said that there were posts on Facebook, “but they won’t arrest you for postings on Facebook or social media” (emphasis added).
109. The Tribunal found the applicant’s explanation difficult to accept. Firstly, he later gave inconsistent evidence with his explanation that they won’t arrest you for postings on Facebook or social media. He later asked, “did I say that?”, and he then said that was not true. Secondly, the Tribunal put to the applicant that he was suggesting that the Egyptian authorities would only act if they had proof, which appeared inconsistent with the country information of their actions at that time (for example routine torture and disappearing people without regard to the rule of law).
245. The Tribunal does not accept that the applicant was honest when discussing the reasons for the proposed withdrawal of his review nor the reason for the cancellation of that withdrawal.
246. The applicant’s online activity/political activities/profile in Australia: The Tribunal had concerns with the applicant’s credibility overall, as well as his claimed activities in Australia. This includes concerns about his claimed Facebook postings which he said contained his political opinions and comments and led to adverse attention:
· The applicant had omitted to claim in his first protection visa application form that he had received death threats from Salafists before he returned in 2012 because of his online activity. He had only made this claim at the first protection visa interview, which had been put to him as a concern by the first delegate. This omission was put to the applicant in the current proceedings pursuant to s 424A of the Act and his responses were considered, including that this was his agent’s fault (however as noted above this explanation is not accepted); he also stated that he elaborated on his claims at interview, however the Tribunal does not accept that this can explain why his form contained no mention of death threats from Salafists nor any mention of online postings.
· The applicant omitted to recall in the current proceedings, as discussed above, that he had received death threats from Salafists before he returned in 2012 because of his online activity.
· The applicant stated that he had been interrogated when detained in 2015 about his online postings (but his evidence was that the comments were about events that had occurred in 2017, which undermined that claim).
· He claimed that even though he had a significant political profile with the authorities for his activities in Australia, he was allowed to return to Australia after signing an undertaking that he would stop which, although possible, appeared inconsistent with the country information as to how the authorities viewed such persons at the time.
· The applicant gave changing evidence as to whether he would face being arrested by the authorities for his Facebook posts: As noted above he had told the Tribunal at the first hearing that he would not face harm for his Facebook posts, which claim changed by the third hearing when he said he will face harm. When it was put to him that he had previously said the opposite he disagreed. However, he had confirmed for the Tribunal at the first hearing that it was his evidence was that they “they won’t arrest you for postings on Facebook or social media” The Tribunal considered that if the applicant had genuinely engaged in postings that he believed would lead him to be arrested, he would not have initially said that he would not face being arrested for that reason.
· He claimed that he would be on a watchlist, detained, prosecuted and subjected to extremely serious harm for his political opinion (which he had been expressing through his Facebook postings), but then sought to withdraw his application for review and return to Egypt in 2020.
247. Having regard to the above the Tribunal is not prepared to accept assertions that the applicant makes as to his Australian activities unless this is supported by other evidence. And while it noted that Word documents referring to online activity can be manipulated, is prepared to give the applicant the benefit of the doubt and accept the screenshots of his Facebook posts he provided to the Department and the Tribunal.
248. Thus, the Tribunal accepts that the applicant made the Facebook posts that he provided to the Department after the interview in May 2017, namely 21 posts between December 2015 and May 2017. Then, four years later, after the Tribunal sent, on 30 April 2021, an invitation to attend a hearing, he provided on 31 May 2021, 6 Facebook posts which, on their face, appeared to have been made a few days before 31 May 2021 (although four of them had an overlay of “from me” and a date in May 2017, inferring that these had been made in May 2017. However, the Tribunal is not prepared to accept the overlay, also noting that if they had been made in May 2017, the applicant has not provided an explanation as to why he did not produce them to the delegate. As set out in paragraph 21 above, he had provided Facebook posts to the delegate after the interview on 4 May 2017 and before the delegate made his decision on 11 July 2017).
249. Also on the 31 May 2021 he provided 2 posts already provided to the Department, and one Facebook post made in January 2021 (again the Tribunal does not accept the overlay saying this was actually made in May 2017).
250. The Tribunal referred to the content of s 5J(6). It said that if it was concerned he had been doing activities in Australia to strengthen his refugee claims (such as Facebook posting) then the Tribunal would have to disregard this for the purpose of considering his refugee claims (but not his complementary protection claims). The applicant did not agree that he had been doing his activities for this purpose.
251. The agent submitted that the Facebook posts were made in 2015 and 2016 which was before he made his protection visa application in 2017 so this indicates that the posts were just posts of his political opinion not because he was planning a protection visa application. However, the Tribunal notes that his second protection visa application was lodged on 7 January 2016 (not in 2017), and that the earliest post provided was from December 2015. The Tribunal considers that a post made in December 2015 can be said to have been made to strengthen his protection visa application lodged in January 2016.
252. The Tribunal’s concerns that the applicant’s claimed Australian activities were undertaken for the purposes of strengthening his claims was also referred to in the s424A letter. The applicant responded that In relation to the evidence submitted in relation to my claims in the protection visa application that I was engaged in while in Australia (relating to Facebook posting or attending gatherings/protests/demonstrations) this is evidence provided to the Tribunal over a vast period of time, which would be hard to fabricate over this entire period. If the Tribunal considers my claims in both protection visa applications, it is clear that the reasons are consistent and collaborate.
253. The Tribunal does not accept that it is hard to fabricate the number of posts he has made since (and in contemplation of) his current protection visa claims lodged in January 2016.
254. The Tribunal has also not accepted his claims of online postings from his first protection visa application. Insofar as the applicant refers to online postings he claimed to have made during or before his first protection visa application lodged in February 2013, the Tribunal noted above its concerns with these claims (as set out in paragraph 246, first 2 bullet points, above), and he has not provided any evidence of such online posting. Thus, although he asserted that he had made political posts since before 2012 which led to him receiving death threats from Salafists, and that he had posted many times against the Muslim Brotherhood, the Tribunal is not prepared to accept these assertions. The Tribunal does not accept that the applicant made any online political/religious postings before December 2015.
255. In his s 424A response the applicant also said he is a peaceful person who seeks to have his political and religious views. He has stated to the Tribunal that these views are that he is against Islamists and the government and Sisi and a lack of human rights and corruption. The Tribunal does not accept that he has genuine anti-government/Mubarak/Sisi/Muslim Brotherhood/Islamist views nor that he has a genuine desire to be politically active, nor to express political or religious views. It thus does not accept his claim that he faces a real chance or a real risk of harm as a result of a lack of political freedom.
256. The Tribunal finds that the applicant made Facebook posts from December 2015 solely for the purpose of strengthening his claim to be a refugee (in his second protection visa application). The Tribunal has not accepted that his posts were genuinely made, nor does it accept that the occasional likes and any comments were genuinely made. It also does not accept that the [messaging service] conversation nor the Facebook / [messaging service] conversation was genuinely made; it does not accept that the applicant has received communication from people in Egypt suggesting that he is political nor that he exchanges political/religious [messaging services] or other messages. It also does not accept that the lengthy “notes” document was genuinely made (or posted). It finds that all of these have been created for the purposes of supporting his protection visa application.
257. The Tribunal notes that the applicant asserted in Facebook posts (undated but recent) that he attended the Egyptian Embassy/Consulate, however on the basis of the adverse credibility finding the Tribunal finds that these assertions were made up by the applicant.
258. The applicant claims to have attended 3 protests in 15 years; he said that he did not attend more because he was busy with his work. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant attended any protests or demonstrations in Australia.
259. At hearing the Tribunal referred to the DFAT report which stated that:
DFAT assesses that failed asylum seekers will not face adverse attention because of their failed application for asylum when they return to Egypt.
5.39 Egypt accepts involuntary returnees. Egyptian officials generally pay little regard to failed asylum seekers upon their return to the country, although it is possible that some individuals will be questioned upon entry, or will have their entry delayed. Many thousands of Egyptians enter and leave the country every day. Egyptians who out-stay their work or tourist visas in other countries are regularly returned to Egypt with no attention paid to them by authorities. DFAT is not aware of failed asylum seekers being reported by airport authorities to the Ministry of the Interior or any of the security services beyond the normal processes for returning Egyptian nationals.
5.40 DFAT assesses that Egyptian embassies or other officials usually take note of political activities conducted by Egyptians abroad. However, only particularly high-profile cases (i.e. those that gain media notoriety in Egypt) are generally of interest to Egyptian authorities. Lower profile political activists may be questioned on return to Egypt, but are unlikely to be detained or otherwise mistreated.
260. The Tribunal put to the applicant that while he claims he has a significant political profile, when looking at the Facebook posts he has produced, there appears to be very minimal engagement: none, 1, 2 or 5 likes, and occasional comments. It put to him that there does not appear to be much traction on his posts, and this does not suggest that he is a high-profile activist or that he is a person of any interest to anyone, in particular he does not appear to be a person that the authorities would take any interest in, or would seek to question. In response he said that in Egypt there is a Department of State Security and those people may let him go out of the airport with no problem but they might then come to his home and he knows of a person who made a simple comment about a TV series who was jailed for 4 months without informing his family.
261. The Tribunal has considered his assertion about a person making a comment about a TV show having been jailed. It also notes his claims made to the delegate: “the authorities in Egypt are monitoring all internet activity in Egypt and that anyone who is found to be critical of the government have been charged”. The delegate put to the applicant that there are millions of people in Egypt and that it would be near impossible to monitor all of the internet activity for the purposes of charging people because of their Facebook comments. The applicant did not address the delegate’s concern other than to state that the Egyptian government is monitoring all of its citizens.
262. The Tribunal prefers the evidence from the DFAT report rather than the assertions of the applicant, whom it has found to be not credible. While the Tribunal accepts that the authorities may monitor activity outside of Egypt, when considering the DFAT report it is not satisfied that this applicant has generated any interest by anyone in Egypt through his minimal Facebook posts in Australia (which in themselves show barely any interest generated through likes and comments, and have not been shown to have gained any traction). The Tribunal also notes the applicant’s claim that he was prepared to delete his Facebook postings before returning to Egypt. The Tribunal considers that, because any postings have been done for the purposes of his protection claims and not for genuine reasons, he will delete any such posts well before returning to Egypt.
263. The Tribunal is not satisfied that this applicant faces a real chance or a real risk of coming to the attention of the authorities (or anyone) to date because of his Facebook posts. It finds that he will delete his posts before he returns to Egypt and it is not satisfied that there is a real chance or a real risk that anyone will become aware of his posts before (or after) that time, and impute a religious or political opinion to the applicant.
264. The Tribunal does not accept that the applicant has ever had or has a profile which has led to adverse attention from anyone in Egypt, nor does it accept that he has a profile or would be imputed with a profile by anyone that would lead to a real chance of serious harm or a real risk of significant harm. The Tribunal does not accept that there is a real chance or real risk that the applicant faces being imputed with a profile or political opinion which could lead to a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. The Tribunal does not accept that the applicant faces a real chance or real risk of being jailed or killed or disappeared because of his political/religious opinion (or at all).
Refugee claims
265. The Tribunal has not accepted the applicant’s claimed fears of harm. It has not accepted any claimed harm based on his marital status or for any other reason. The Tribunal considers that the applicant has made up claims of feared harm and circumstances that may lead to harm and that he has no genuine fears about returning to Egypt. It has not accepted that he had undertaken political or religious activities which would have led to a political or religious profile (actual or imputed) in Egypt or in Australia before December 2015.
266. While accepting that he made political Facebook posts from December 2015 until May 2017 and then once in January 2021, and then several in May 2021 (having been informed of the hearing), the Tribunal has found that these were done for the purpose of strengthening his claim to be a refugee and his activity is thus, pursuant to s5J(6) of the Act, to be disregarded in considering his claim to be a refugee.
267. Thus, it has found that he engaged in no activities and had no profile before December 2015, and his Facebook postings since then are disregarded, and it finds that he will not be genuinely motivated to make political / religious comments in the reasonably foreseeable future, including if he returned to Egypt (due to a lack of interest, not because of fear).
268. Even if the Tribunal considered the activity of the authorities in monitoring, the Tribunal has found that there is not a real chance that the applicant’s activity would have come to the attention of the authorities.
269. The Tribunal is not satisfied that the applicant fears or that he actually faces a real chance of serious harm at all, and in particular not for any of the 5 listed reasons, in particular it does not accept that he faces a real chance of being imputed with an adverse political or religious opinion.
270. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
271. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment A, which provides a summary of the relevant terms). The Tribunal also notes that the real risk test under the complementary protection criterion imposes the same standard as the real chance test under the refugee criteria[29].
[29] MIAC v SZQRB [2013] FCAFC 33
272. The Tribunal has accepted that the applicant will return to his family home in Egypt (noting he has not lost his apartment as claimed).
273. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm for any reason at all, including in relation to his marital status.
274. Concerning the Australian activities of Facebook posts, the Tribunal noted that s 5J(6) does not apply to a consideration of complementary protection. However, as noted above the Tribunal has found that it is not satisfied that the authorities or anyone will become aware of his posts and impute an adverse religious or political opinion to the applicant.
275. Thus, the Tribunal has found that he engaged in no activities and had no profile before December 2015, and it has found that it is not satisfied that there is a real risk that his Facebook postings since then would have or will have come to the attention of anyone, and it finds that he will not be genuinely motivated to make political / religious comments in the reasonably foreseeable future including if he returned to Egypt (due to a lack of interest, not because of fear).
276. The Tribunal is not satisfied, on the country information and having regard to its findings, that the applicant faces a real risk of experiencing significant harm for any reason.
277. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Egypt, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
278. 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).
279. 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).
280. 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
281. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
MemberATTACHMENT A – 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.
ATTACHMENT B – 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Standing
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