1717267 (Refugee)

[2019] AATA 5799

1717267 (Refugee) [2019] AATA 5799 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717267

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Mara Moustafine

DATE:9 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 May 2019 at 11:00pm

CATCHWORDS

REFUGEE – protection visa – Egypt – Federal Circuit Court Remittal – religion – Coptic Orthodox Christian – romantic relationship with Muslim woman – claimed persecution and assault by Muslim Brotherhood – evidence evasive, inconsistent and vague – embellished and fabricated claims – not a credible or truthful witness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of Egypt.  He arrived in Australia on a visitor visa (subclass 600) [in] June 2014. 

3. The applicant previously travelled to Australia in November 2005 as the holder of a visitor visa (subclass 679) and as the holder of a student visa (subclass 572) in November 2006. The applicant lodged two applications for visitor visas, which were refused by the Department on 8 March 2012 and 20 April 2013.

4. The applicant applied for a protection visa on 2 July 2014.  A delegate of the Minister refused to grant the visa on 6 February 2015. On 20 February 2015 the applicant applied to the then Refugee Review Tribunal (RRT) for a review of the Department’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

5. The RRT affirmed the decision under review on 23 August 2016 and the applicant sought judicial review of the RRT’s decision. [In] 2017, the Federal Circuit Court remitted the matter by consent for reconsideration on the basis that the RRT had failed to have regard to certain material submitted by the applicant on 16 August 2016.

6. The matter is now before the Administrative Appeals Tribunal (AAT), being constituted by a different Member.

   Protection visa application

7. According to his protection visa application, the applicant was born in [year] in Cairo, Egypt and is a Coptic Orthodox Christian. He speaks reads and writes Arabic and English. He lived in Alexandria with his parents and older brother, who is now living in Australia. After completing tertiary [college], he worked in sales and marketing for [Business 1].  

8. In a statutory declaration submitted with his application form, the applicant claimed that, because he was a Christian, he was verbally abused and physically assaulted by his employer at [Business 1] where he worked in 2008 and his extremist Muslim Brotherhood followers. He was ‘expelled’ from the company at the end of the year. Further, he claimed that after the 25 January 2011 revolution in Egypt, his Muslim friend and neighbour, who had been his ‘soul mate’, became a fanatical member of the Muslim Brotherhood and his attitude to the applicant became one of ‘extreme hate and revenge’.  The applicant’s friend was ‘incited’ by his previous employer to hurt the applicant by hiring three thugs to beat him up for being a Christian, resulting in ‘intense injuries’. The applicant fears that if he returns to Egypt, he might be killed by the Muslim Brotherhood.

   Department interview

9. The applicant attended a Departmental interview on 7 January 2015. The Tribunal has listened to the audio recording of the interview and is satisfied that the summary of the interview in the Decision Record dated 6 February 2015, provided to the RRT by the applicant is accurate.

10. The applicant told the Department that his migration agent had failed to include a number of important elements of his protection claims in the statutory declaration submitted on 3 July 2014. In particular, he claimed that he had a romantic relationship with a Muslim neighbour named [Ms A] and had been advised a month and a half before his interview that she had converted to Christianity, for which he was being held accountable by Islamists in his area. He also claimed he had been a deacon in the Coptic Church in Alexandria and involved in charitable activities and discussions about the Bible with poor villagers, including Muslims. Late in the interview the applicant also introduced the claim that his former friend, who became a Muslim extremist and arranged for thugs to bash him, was a high-ranking army officer. He claimed this friend was not arrested as a member of the military with links to the Muslim Brotherhood after the overthrow of President Morsi as no one knew about his links with the Muslim Brotherhood. The applicant said he had been hospitalised for about 7 to 8 months after the beating, then clarified that this was the result of a car accident, and that he had been in hospital for just two days after being beaten. The applicant was unable to recall the date of his car accident, claiming that his poor memory was the result of injuries he sustained in the accident.

11. At his interview the applicant provided copies of two documents from the Coptic Orthodox Patriarchate of Alexandria, Egypt dated [in] June 2014: a baptism certificate and a certificate of services, affirming that the applicant regularly attended mass and took communion.

12. The applicant told the Department at interview that he had emailed his agent a detailed statement of his claims in Arabic and undertook to forward this to the Department. However, according to the delegate’s decision, the applicant subsequently advised that he was reluctant to provide this document as he now believed it also contained errors, which he attributed to problems with his memory due to injuries sustained in the car accident. On 12 January 2015, the applicant provided an Arabic language document, advising that he had not, in fact, sent this statement to his migration agent, as previously indicated, but to his brother by mistake. He did not provide a translation.

    Department’s decision

13. In refusing to grant the applicant a protection visa on 6 February 2015, the delegate found the applicant’s evidence to be evasive, inconsistent and vague. He did not accept that the applicant was subjected to harm and mistreatment by individuals associated with the Muslim Brotherhood; or that he was involved in a romantic relationship with a Muslim woman who subsequently converted to Christianity; nor that he was of adverse interest to Muslims in Egypt.

    Review Application

    RRT Review

14. On 15 February 2015 the applicant applied to the RRT for a review of the delegate’s decision, a copy of which was provided to the Tribunal for the purposes of the review.

    RRT Hearing

15. The applicant appeared before the RRT to give evidence and present arguments at a hearing held on 19 July 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Relevant points made by the applicant at the hearing were:

    a.    He has trouble remembering dates since his car accident in June 2008.

    b.    Before coming to Australia in 2014 the applicant worked as a [manager] for about a year in a [company] called [Business 2]. After finishing his education, he bought two cars with his father’s financial assistance, which he leased through his [car rental company]. Around 2000 or 2001 the company was bought by his neighbour, who owned [Business 1], for whom he worked in marketing. He also worked as a [occupation] in an Egyptian company and was working for [Hotel 1] at the time he had his car accident.

    c.     He was hospitalised for several months and had treatment at home for a further three years. He was not working during this period as he was immobilised and had ‘concussion in the brain’. He thought that he didn’t work for two to two and a half years from the time of his accident.

    d.    The applicant is afraid to return to Egypt because of what happened to him in the past, including what happened in the car accident, which he thinks was ‘arranged’.

    e.    Prior to his car accident he had a relationship with his Muslim neighbour, [Ms A]. From his perspective it was a friendship but she was in love with him. Her brother, [Mr B], a radical member of the Muslim Brotherhood did not approve of the relationship, verbally threatened the applicant and hit him once. Her brother was also a friend of the applicant’s close friend, [Mr C], a high ranking army officer. The applicant was unaware at the time that [Mr C] was also a member of the Muslim Brotherhood. [Mr C] supported [Ms A]’s brother against the applicant because he was a Christian and he was shocked that [Ms A], a Muslim woman, was in a relationship with him. [Ms A]’s brother was also concerned that the applicant was a ‘servant’ in the church, doing charitable work with poor farmers, including Muslims.

    f.   After his car accident, the applicant had a lawyer working with him to obtain a compensation payment. His lawyer found out from the police that there was some criminal suspicion about the car accident in which the applicant was severely injured and the driver killed and was surprised that the case had been closed. When the applicant told his lawyer that [Mr C] had said to him ‘you managed to survive this accident but next time you won’t’, his lawyer had concluded ‘80% or more’ that [Mr C] was behind the accident. 

    g.    Asked if he had asked his lawyer to provide a statement about these events to the Department or the Tribunal, the applicant said he could not expect to get a statement from the police about an army officer who arranged a car accident when the army controlled the country and did not respond when the Tribunal explained it had in mind a personal statement from his lawyer about the accident and how it occurred, not a police report.

    h.    The applicant found out after arriving in Australia that [Ms A] had converted to Christianity, though he did not know who the priest was who converted her, nor where she was. She has not responded to his phone calls.

    i.   To the Tribunal’s suggestion that his claims were becoming more elaborate and embellished over time, the applicant said his initial statement left out names and dates but was essentially the same as what he was telling the Tribunal. He said that his former agent had told him his first written statement was not good enough as it lacked names and dates, which he agreed to provide. He had expected that his agent would wait until he supplied them, but she submitted to the Department the original statement without names and dates. The applicant had told the department at interview that he emailed the complete statement to the agent but later discovered that he had mistakenly emailed it to his brother instead. He then had a dispute with his migration agent, who no longer represented him. He was unable to provide a translation of the statement, as requested by the Department, as he had no money at the time, so only sent the Arabic text.

16. Documents submitted to the RRT at hearing included a letter from [a Coptic church] in Sydney dated [in] July 2016 affirming that the applicant was a member of the parish and committed Christian, who attended the Liturgies and contributed positively to the church’s services; translation of an admission report from [an Egyptian hospital] dated 27 June 2016 stating the applicant was admitted to hospital [in] June 2008 after an ‘alleged motor vehicle accident’ with [specified injuries and treatment]; medical referral letters from his GP referring to the applicant’s ‘dizzy spells with history of car accident (overseas – 2008),a diagnostic imaging request for an ‘MRI – Brain’ for the reason of ‘dizzy spells’  and a letter to his GP from a urologist regarding his diagnosis; and media articles regarding attacks on Christians in Egypt.

17. On 1 August 2016 the applicant emailed the RRT stating that he had received information from two sources that the Egyptian police were searching for him and he could be in great danger. A friend had told him that the police were searching for him in relation to the disappearance of [Ms A] and that her family suspected that he was behind her disappearance. He had also received on 22 July 2016 an email, which his brother had apparently found in his junk mail, sent from his former employer in Egypt dated 3 June 2017 (sic), advising that the police had questioned the employer personally about the applicant’s whereabouts. He responded that he did not know where he was and the police asked him to sign a document testifying to this. The attached copy of the email from the employer stated that he was contacted three days earlier by someone from Qism El Montazah (an area of Alexandria) asking for the applicant. He told them that he did not know where he was and that he worked there a long time ago. They asked for this response officially and he gave them a letter with this information.

18. On 2 August 2016 following his hearing, the RRT wrote to the applicant inviting him to comment on or respond to certain information. In particular, the Tribunal drew his attention to inconsistencies in his evidence, including between the statutory declaration submitted with his original protection visa application and the Arabic statement that he submitted to the Department in February 2015, as translated by the interpreter during the RRT hearing; as well as inconsistencies regarding his employment and other issues.

19. On 16 August 2016 the applicant’s adviser responded to the RRT’s letter with a submission and supporting documents, including a translation of the document previously provided to the Department in Arabic. The migration agent noted that the applicant’s original statutory declaration submitted with his application was incomplete; that the applicant denied ‘the previous advisers insistence that the submitted declaration had been read to him prior to submission’; and that while he told the Department he had emailed to the previous adviser his detailed claims, he discovered after the Departmental interview that he had mistakenly sent the email to his brother. The agent provided the following ‘relevant chronology’:

    a.02/07/2014 – protection visa application submitted

    b.26/07/2014 – emails containing detailed claims sent to brother in error

    c.07/01/2015 –  DIBP interview

    d.12/01/2015 – realised and informed DIBP that email of 26/07/2014 was sent incorrectly.

20. The agent also confirmed that, ‘the translated document contains more than inserting of dates and names as indicated by the interpreter at RRT hearing’, for example references to the army officer and the applicant’s romantic relationship with [Ms A]. 

21. Other supporting documents included emails to the applicant’s former adviser and to the Department; and an undated letter from [Business 2] stating that the applicant had been working for the company as a [manager] since July 2009.  

22. Key relevant points in the translated statement were:

    a.    He was in a relationship with a Muslim girl ([Ms A]), which developed into love. He knew he had to end the relationship. However, the owner of [Business 1] where he worked in 2008, [Mr D], and his friend, [Mr E], who were Muslim Brotherhood followers, knew about it and accused him of trying to convert [Ms A] to Christianity. At the end of the year they assaulted and bashed him till he fell and lost consciousness. Later [Mr D] sacked him from the company and told him not to pass through the street.

    b.    His Muslim friend, [Mr C], a life long friend and neighbor and an army officer, who was also a neighbour of [Mr D], became an extreme Muslim Brotherhood follower after the 2011 revolution. He hired five thugs who beat the applicant when he was visiting Alexandria from Cairo. As a result of this assault, he had stitches in his back. 

    c.     Egypt has become unsafe for him and his life. As [Mr C] is an army officer, killing the applicant would be ‘ordinary and easy’.

23. On 23 August 2016 the RRT affirmed the decision of the Department. It found that the applicant was not a credible or truthful witness and had fabricated his claim in order to be granted a protection visa.

24. On 31 July 2017, the Federal Circuit Court remitted by consent the decision to the AAT for reconsideration because the RRT had failed to have regard to an email and submission provided by the applicant’s migration agent on 16 August 2016 (paragraph 19).

    AAT Review

25. The applicant was represented in relation to the review by his registered migration agent.

26. The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  

27. The Tribunal discussed with the applicant his background, family, current circumstances and claims for protection. Where relevant, the applicant’s evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

29. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

30. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

31. 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 a protection 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 the applicant 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’).

32. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

1. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

   Analysis, reasons and findings

2. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

3. For reasons outlined below the Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the implausible nature of some key aspects of his claims and other reasons detailed below.

4. While the applicant was consistent in his claim that he feared harm from the Muslim Brotherhood because he is a Coptic Christian, over the course of the protection visa process he shifted his evidence and added new claims about the harm he experienced in the past (why and from whom), as well as the harm he fears he may suffer in the future.

5. In his original protection visa application, the applicant’s claims centred on the harm he experienced for being Christian, including verbal abuse, physical assaults and sacking from his job at [Business 1] by his employer and his extremist Muslim Brotherhood associates; as well as from his Muslim friend and neighbour, who became a fanatic member of the Muslim Brotherhood after the 25 January 2011 revolution and hired three thugs to beat him up for being a Christian, resulting in ‘intense injuries’.  At his Department interview, the applicant introduced new claims that he would be targeted by the Muslim Brotherhood because of his romantic involvement with a Muslim woman named [Ms A], who had subsequently converted to Christianity; because of his charitable Church activities with poor villagers, including Muslims; and that his former friend, who joined the Muslim Brotherhood was a high-ranking army officer. At his RRT hearing, the applicant introduced further new evidence that it was [Ms A]’s brother [Mr B], a Muslim Brotherhood member, who disapproved of their relationship, verbally threatened and hit him; and that his former friend, now identified as [Mr C], who was also a friend of [Mr B], acted in his support against the applicant over the relationship with [Ms A] and probably arranged the car accident in which the applicant was injured. In his evidence to this Tribunal, the applicant stated that [Mr C] had caused the car accident in order to kill him and said he feared that if he returned to Egypt, [Mr C] would kill him because he knew that [Ms A] had converted from Islam to Christianity.

6. The Tribunal is also concerned about the evolution of his claims from the original statutory declaration submitted with his protection visa application to the subsequent Arabic language statement submitted to the Department in January 2015, a translation of which was provided to the RRT on 16 August 2016. The Tribunal discussed with the applicant at hearing that, notwithstanding his evidence that the later statement simply added name and dates, it went much further than that, as previously raised with him by the RRT and acknowledged by his migration agent in her last submission. The Tribunal finds disingenuous the applicant’s comment that it was ‘not a different story’ and that the main subject never changed, given that new claims have clearly been added, including about the applicant’s relationship with [Ms A] and charitable activities for the church.

7. The applicant’s credibility is further undermined by the convoluted series of events, which he claimed resulted in his full claims not being submitted with his protection visa application and his subsequent reluctance to submit a translation of his second statement and delay in having it translated and submitted, as noted in paragraphs 12 and 15.i.

8. Taking the translated statement at face value, however, the Tribunal has serious concerns about the inconsistencies between this statement and other evidence provided by the applicant. In the statement the applicant identified the owner of [Business 1] where he worked in 2008, [Mr D], and his friend, [Mr E], as the Muslim Brotherhood followers who targeted him and accused him of trying to convert [Ms A] to Christianity. However, there is no mention of [Ms A]’s brother, [Mr B], who, the applicant told the RRT and this Tribunal, was the Muslim Brotherhood member targeting him, along with his army officer friend [Mr C]. In the translated statement, the applicant said that [Mr C] hired five thugs (paragraph 22.b) to beat him at the behest of [Mr D] and [Mr E], while in his statutory declaration he indicated there were three thugs (paragraph 8). The Tribunal also notes that the statement makes no mention of the applicant being a Deacon/’servant’ of the Coptic Church or his involvement with charitable works in poor villages, which he claimed upset various Muslim Brotherhood members.

9. The Tribunal found the applicant’s evidence regarding his past employment in Egypt vague and inconsistent. In an extended discussion about this at his Tribunal hearing, the applicant mentioned a number of jobs, including renting two cars which he bought around 2000 for around 2-3 years; then working in marketing for a restaurant and then [a tour] company in Cairo for some 4 or 5 years; before returning to Alexandria, where he worked for [Hotel 1] for ‘a long time’. He claimed he stopped working for the hotel in 2011 because he had a major car accident in 2009, then shifted his evidence to say that he did not work between 2009 and 2011, but was recovering from his car accident, although the hotel paid him until the end of 2011, as he was working there at the time he had his accident. The applicant told the Tribunal he started at [Business 2] in 2011 and worked there until he came to Australia in June 2014. This is inconsistent with his evidence earlier in the hearing that he worked at [Business 2] for nine months before coming to Australia (which the Tribunal has calculated to be from around October 2013); his evidence in his initial statutory declaration and subsequent statement that he started a new job in 2009, as well as the letter he provided from his employer, which stated that he had been working with the company from July 2009 (paragraph 21). The timing in this letter is also inconsistent with the applicant’s evidence to the RRT that he was hospitalised for several months after his accident, then stayed at home having rehabilitation for a further two or more years, during which time he did not work (paragraph 15.c).

10. In his evidence to the Department and throughout his review process, the applicant attributed his memory problems, particularly his inability to remember dates to the brain concussion he incurred in his car accident. The Tribunal finds this explanation dubious, given that there is no mention of concussion or brain injury in the very comprehensive admission report from the [named hospital] after his ‘alleged motor vehicle accident’; while the Australian medical documents which mention ‘dizzy spells’ are simply referrals and therefore inconclusive (paragraph 16). The Tribunal does not consider that these alleged injuries have had any impact upon the applicant’s ability to participate in the hearing and notes that he has made no complaints about this. The Tribunal notes that the applicant had no difficulty providing the exact names of people involved in his account of events, only dates. While the Tribunal does not expect an applicant to remember the exact dates of all his past jobs, it finds implausible that he would not be able to correctly identify details of the last job he allegedly held in Egypt before coming to Australia in June 2014. In this context, his contradictory evidence about the timing of his work with [Business 2], as outlined above, raises serious doubts about the veracity and credibility of the applicant’s evidence.

11. Significantly, while the applicant indicated in both his statutory declaration and translated statement that he worked for [Mr D]’s [Business 1] in 2008 until he was dismissed at the end of that year, at his Tribunal hearing, he made no mention of ever being employed by that company; and confirmed several times that he did not work in any other jobs apart from those mentioned in paragraph 41. The Tribunal put to the applicant that his failure to mention working at [Business 1] raised serious doubts as to whether the incidents or harm, which the applicant claimed to have occurred at the hands of [Mr D] or his Muslim Brotherhood associates, ever took place, to which he responded that the Tribunal was ‘right’.

12. In view of the above, the Tribunal does not accept that the applicant ever worked for [Business 1] or had any connection with the owner, [Mr D], or his Muslim Brotherhood associates; or that any of the incidents or harm, which the applicant claimed to have occurred at the hands of [Mr D] or his Muslim Brotherhood associates, ever took place. This includes the alleged verbal harassment and physical assault because the applicant was a Christian; over his Christian activities in villages; or his relationship with a Muslim woman named [Ms A], including accusations that he was trying to convert her to Christianity or that he was held accountable for her conversion by local Islamists.

13. The Tribunal notes that the applicant made no mention of [Ms A]’s brother, [Mr B], a radical member of the Muslim Brotherhood, in either the statutory declaration provided with his protection visa application or the translated statement. In light of this, the Tribunal is not satisfied that such a person targeted, threatened or hit the applicant because he disapproved of his relationship with his sister; nor that his friendship with [Mr C], prompted the latter to act in his support against the applicant over the relationship with [Ms A], including hiring five thugs (or three as mentioned in his statutory declaration) to beat him up and arranging the car accident in which the applicant was injured.

14. On the basis of the medical report from [the Egyptian hospital], the Tribunal is prepared to accept that the applicant was admitted into the hospitals [in] June 2008 for injuries that may have been related to ‘an alleged motor vehicle accident’. The Tribunal is not satisfied, however, that the accident was ‘arranged’ or a deliberate act to cause the applicant serious or significant harm, either by his former friend [Mr C], who he claimed was a high-ranking army officer and member of the Muslim brotherhood, or any other person. This claim was not mentioned in either of the applicant’s written statements, as conceded by the applicant in discussion at hearing. Moreover, in the recording of his Department interview conducted on 7 January 2015, the applicant is heard clearly confirming that the accident, which took place when he was driving the car after work, was not the result of someone deliberately trying to harm him. The Tribunal discussed this information with the applicant at hearing in accordance with s.424AA of the Act, noting that the inconsistency between this and his subsequent evidence to the RRT and this Tribunal raised doubts about his truthfulness and general credibility.

15. The Tribunal is not persuaded by the applicant’s response that he only came to know that [Mr C] was behind the accident from his lawyer in Egypt in 2016, well after his Department interview. The Tribunal notes that when asked earlier in the hearing how he knew that [Mr C] was responsible, the applicant said that his lawyer discovered that the accident was caused by someone else when working on his compensation claim, while he himself was in intensive care at the hospital. According to the medical report provided, this was for a short period after he was admitted in June 2008. Furthermore, in his evidence to the RRT, the applicant stated that his lawyer had concluded ‘80% or more’ that [Mr C] was behind the accident after a remark [Mr C] allegedly made to the applicant. This would have to have been before he departed Egypt in June 2014. Under these circumstances the Tribunal would have expected that the applicant might have made reference to these matters in his statutory declaration or translated statement. However, he did not do so. Notably, too the alleged car accident took place some two and a half years before the 2011 revolution in Egypt, the event which the applicant consistently claimed, resulted in his friend [Mr C]’s radicalisation (paragraphs 8 and 22.b).

16. The applicant told the Tribunal that the only reason he feared returning to Egypt was that his former friend [Mr C] would kill him. However, he offered nothing more than speculation as to why this would happen and how he knew this, saying variously that it all ‘seemed evident from the car accident’ caused by ‘this army officer’ who tried to kill him; and that, as [Mr C] was a very close friend of [Ms A]’s brother, he would know that she had changed her religion from Muslim to Christian, so ‘maybe they are looking for me’. He added that ‘it was written in the religion’ that if a girl changed her religion from Islam to Christianity, she should be killed and that he would have to take the same punishment. At the same time, the applicant confirmed that he had no evidence that [Mr C], whose whereabouts he did not know, had tried to kill him or caused the car accident; nor did he have evidence that [Mr C] wanted to kill him should he return to Egypt.

17. Overall, the Tribunal is not satisfied that the applicant has provided truthful evidence about his claims.

    Harm as a Coptic Christian by Muslim Brotherhood members and/or extreme Islamists for reasons including his Christian activities in villages and relationship with a Muslim woman.

18. Based on the documentary evidence submitted, the Tribunal accepts that the applicant is a baptised Coptic Orthodox Christian, who regularly attended mass and took communion at his church in Egypt and has continued to attend church in Australia.

19. Although the applicant asserted that he was a Deacon or ‘servant’ in the Coptic Orthodox Church in Egypt and was involved in charitable activities in poor villages, including with Muslims, this was not mentioned in either his statutory declaration or the translated statement he subsequently provided. Nor did the applicant provided any evidence to support this claim. Although the certificate of services from the Coptic Orthodox Patriarchate of Alexandria dated [in] June 2014 (paragraph 11) affirmed that the applicant regularly attended mass and took communion, there was no mention that he was a Deacon in the church or involved in any charitable church activities. In the Tribunal’s view, such information would have been included in such a certificate if it were the case that the applicant carried out those functions.  In light of the above, the Tribunal is not satisfied that the applicant was either a Deacon or involved in charitable activities in poor villages, including with Muslims, as claimed. It does not accept, therefore, that such activities incited Muslim Brotherhood members, including [Ms A]’s brother, his former friend [Mr C], [Mr D] or any associates, to harm the applicant. 

20. The Tribunal found the applicant’s evidence about his relationship with [Ms A], which he variously described as a friendship and a love relationship, as well as her alleged conversion to Christianity vague and unsubstantiated. Asked about the relationship at the beginning of his Tribunal hearing, the applicant told the Tribunal that he and [Ms A] had been ‘sort of friends, not lovers’; started being ‘boyfriend and girlfriend’ in [high] school, which lasted for about three [years] because she got married. Asked when he last had contact with [Ms A] before coming to Sydney in June 2014, the applicant said variously ‘a long period’, ‘years’, ‘many years’ and ‘too many years’. Later in the hearing however, when the Tribunal queried why the applicant would be seen as responsible for [Ms A]’s alleged conversion to Christianity after all this time, he claimed that this timing was incorrect, saying that, after [Ms A] got divorced, she wanted to return to the relationship with him and that the last time he had contact with her could have been 2010, but not 2001. The Tribunal regards this rationalisation as self-serving.

21. As for [Ms A]’s alleged conversion to Christianity, the applicant told the Tribunal that he did not know how or when it took place, other than it was after he arrived in Australia and that he learned about it in a phone call with his former employer from [Business 2] in June 2016. However, this timing is inconsistent with the applicant’s evidence to the Department that he had been advised that [Ms A] had converted to Christianity a month and a half before his interview on 7 January 2015 and was being held accountable for it by Islamists in his area (paragraph 10).

22. In view of the inconsistencies noted above, the Tribunal is not satisfied that the applicant had a relationship with a Muslim woman named [Ms A], nor that she converted to Christianity. It follows that the Tribunal does not accept that the applicant was targeted or physically assaulted because of any relationship with [Ms A] by Muslim Brotherhood members, including [Ms A]’s brother or his former friend [Mr C]; nor that he is being held accountable for her alleged conversion by them or local Islamists. It does not accept that the applicant will be targeted or harmed by any of them for this reason; or that the applicant or [Ms A] will be killed because of her conversion because ‘it is written in the religion’. The Tribunal is not satisfied that if the applicant returns to Egypt he will be killed by his former friend [Mr C], as claimed, over his relationship with [Ms A] or his alleged involvement in Church charitable activities, or for any other reason. 

23. Further, the Tribunal is not satisfied that the applicant is of any interest to the police in Egypt. It does not accept the applicant’s unsubstantiated claim that his friend told him that police came looking for him in June 2016 in relation to [Ms A]’s conversion and disappearance. It also notes that the email sent from the applicant’s previous employer about someone from Qism El Montazah looking for him makes no reference to police or the reason for the person’s interest in the applicant. It makes no mention of [Ms A] or her disappearance, nor does it suggest that this is the reason the applicant is being sought (paragraph 17).

24. While the applicant has claimed that he may be harmed by the Muslim Brotherhood as a Christian, as discussed at hearing, country information, including reports referenced in the Department and RRT decisions, as well as the latest DFAT report[1], since the ouster of the Islamist Morsi regime in July 2013, the situation for Egypt’s 9 million Christians, who comprise the largest non-Muslim minority in the country, has improved markedly. Of particular relevance is the significant crackdown on the Muslim Brotherhood’s members and activities and its proscription in December 2013 as a ‘terrorist organisation’ under Article 86 of the Egyptian Criminal Code, membership of which may incur penalties of up to five years’ imprisonment.

    [1] DFAT, DFAT Country Information Report Egypt, 19 May 2017, p.13-16.

1. Furthermore, most Christians regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. It has observed that:

   Although significant community tensions remain in some areas of Upper Egypt (particularly Minya), there have been substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Copts. DFAT assesses that most Copts from all walks of life live peacefully with their Muslim neighbours, particularly in urban centres.[2]

   [2] DFAT, DFAT Thematic Report: Egyptian Copts, 24 November 2015, p.11 

2. The Tribunal has had regard to the media articles dated between May and July 2016 about attacks on Christians by Muslims in Egypt, which the applicant provided to the RRT. It notes that all the attacks described occurred in rural areas or villages.

3. Based on the country information referenced above, the Tribunal finds the risk that the applicant would face serious or significant harm in Egypt as a result being a Coptic Christian to be remote. 

   Summary Findings

4. Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Egypt and the reason he fears harm there or that any of his evidence can be relied upon. In the Tribunal’s view, the applicant fabricated his claims for the purpose of obtaining a protection visa in order to remain in Australia.

5. The Tribunal is not satisfied that the applicant was ever involved in charitable church activities in poor villages, including with Muslims. The Tribunal is not satisfied that the applicant was in a relationship with a Muslim woman named [Ms A]; or that she has since converted to Christianity or disappeared; nor that he is currently being sought by the police for these reasons. The Tribunal does not accept that, while living in Egypt, the applicant was ever subjected to serious or significant harm at the hands of Muslim Brotherhood members or Islamists, including the owner of [Business 1] and his associates; [Ms A]’s brother [Mr B]; or his former friend and neighbour, a senior army officer [Mr C], because he is a Christian, due to his involvement with church activities in poor villages or his alleged relationship with a Muslim woman. It follows that the Tribunal does not accept that if he returns to Egypt, there is a real risk or real chance that the applicant will face serious or significant harm at the hands of Muslim Brotherhood members, in particular his former friend [Mr C], due to his relationship with a Muslim woman; his involvement in charitable church activities in poor villages or any responsibility for the woman’s conversion to Christianity, which the Tribunal does not accept happened. 

6. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Egypt the applicant will suffer serious harm amounting to persecution for reasons of his Christian religion or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Egypt now or in the reasonably foreseeable future.

7. The Tribunal has also considered the applicant’s claims under complementary protection. As it has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a protection visa, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.

   Non-disclosure certificate

8. In the course of the hearing the Tribunal discussed with the applicant that there was a non-disclosure certificate on the Departmental file. The certificate issued under s.438(1)(a) covered information provided to the Department by a third party, the disclosure of which might identity a confidential source of information. At hearing the Tribunal advised the applicant that it did not consider the certificate valid as the information was provided anonymously. The Tribunal drew the applicant’s attention and invited his comment on the information covered by the certificate in accordance with s.424AA of the Act, noting that it did not attach weight to this information as it had been provided anonymously. The applicant stated that the information was ‘not right at all’.    

   CONCLUSIONS

9. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

10. 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).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Mara Moustafine
    Member