1720969 (Refugee)

[2021] AATA 3039

1720969 (Refugee) [2021] AATA 3039 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720969

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Angela Cranston

DATE:11 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2021 at 1:43pm

CATCHWORDS

REFUGEE – Protection visa – Egypt– dispute akin to a tribal feud – applicant was properly invited to a hearing– failed to attend hearing – the chance of a revenge encounter in his village –  inability to question him about the veracity of his claims –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 360, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (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 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 on 7 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Egypt, applied for the visa on 3 February 2017. In his protection visa application, the applicant said the following:

   I was born in the [Province] of Mahala Al Kobra, Egypt.
   I arrived in Australia on [date]/11/2006 on a student visa.
   In 2007 something happened in my village that made my return to Egypt an act of suicide, I shall attempt to narrate it as simply as I can.
   I am a member of the [Clan 1] .
   [Clan 1] and [Clan 2] are two of the largest families in the [village].
   My father owned a [factory] in the village.
   Next to our factory was another [factory] owned by a man named [Mr A].
   [Mr A] is a member of [Clan 2] family.
   This created a kind of competition between the two factories and hence between the two large families. The dispute between the two families is akin to tribal feud.
   I have a paternal uncle named [Mr B].
   My uncle [Mr B] and [Mr A] both had their eyes on a block of land in the village. Both wanted and were very eager to possess this piece of land. According to the Egyptian rural culture, land and honour are the same things, two sides of one and the same coin.
   Eventually my uncle succeeded in purchasing the said piece of land.
   This caused a great deal of resentment in the heart of [Mr A]; the land had gone to the [Clan 1] and took his honour with it. This is the mentality of the peasants and had been so for untold number of generations.
   [Mr A] tried to let off some steam; he disconnected the power that supplied my father’s factory with electricity.
   In the villages in Egypt there is a small little kiosk in which the power switch is located. It happened that the kiosk of the power switch to our factory was located near [Mr A]’s factory.
   Cutting the power off our factory caused a great deal of trouble to my father’s operation.
   My father went to speak to [Mr A] and see why he did what he did. They were standing on the street near the two factories.
   My father spoke in a polite manner but [Mr A] was very rude, crude and lewd and verbally abused my father.
   It happened that my uncle [Mr B] was coming to my father’s house in which the factory is located. In other words, the factory we owned was located inside our home. As my uncle [Mr B] approached them, he heard the abusive words [Mr A] was levelling against my father.
   [Mr A] pushed my uncle [Mr B] on the ground. [Mr B] fell down in pain.
   People from the two families came from everywhere and a scuffle took place between members of the two families.
   As the villages were exhausted from the tug-of-war, the son of my cousin, a young chap [springs] by the name of [Mr C] (hereinafter referred to by cousin [Mr C]) was coming out of the small [factory] owned by the [Clan 1]s.
   A member of the [Clan 2] families struck [Mr C] on his head causing him to drop dead.
   Some villages put the injured man in a car and took him to hospital in the town. Soon he was pronounced dead.
   My uncle [Mr B] left the village and disappeared for about a week. He did so because he did not want to participate in a reconciliation meeting. He wanted to revenge and avenge the death of [Mr C] (this is the tradition; the revenging person will leave the village until he commits his crime of revenge).
   Police interfered and took my father to the police centre in the village and told him that he will not be allowed to go home until his brother (my uncle [Mr B]) comes back to the village to participate in the reconciliation process.
   After several attempts my father was able to contact his brother and asked him to come home.
   [Mr B] obeyed my father and returned home.
   The father of the dead man [declared] that he will resort to the law and took a legal action against the murderer.
   The court decided to imprison the murderer for three years only because it was a brawl.
   Soon after the judicial decision was known in the village, the father of the dead man (a landowner) who is a member of the [Clan 1] sacked all the agricultural labourers who belonged to [Clan 2] family.
   To make things worse, my uncle [Mr B] carried out his revenge and murdered a member of the [Clan 2] family, a man by the name of [Mr D].
   Soon after it was known that the death of [Mr D] was actually an act of revenge, my younger brother [fled] the village.
   I was contacted by two of my friends; one is called [name deleted] and the other is called [name deleted]. They told me that the sacked agricultural workers vowed to revenge for the murder of [Mr D] as well as the economic hardship caused by the sacking of [Clan 2] agricultural labourers.
   In the early part of 2008 a number of [Clan 2]s attacked my father’s home and smashed the glass windows.
   For the second time, I was told that the [Clan 2]s declared their intention to avenge the death of [Mr D].
   The situation became worse and worse and the [Clan 2]s vowed to kill me as an act of revenge. I am the elder son of my father and revenge is always taken out on the elder.
   I became frightened and did not know what to do. I thought that if I wait as long as I can here in Australia, I will be alright.
   By 2011 Egypt fell into chaos and all the police stations were burnt out. There was virtually no police force in Egypt for three or four years. Years following the uprising of January 25, 2011.
   To my mind, returning to a village plagued with the tradition of revenge and counter revenge in this circumstances would have been an act of suicide.
   Even after the fall of Morsi’s government, the situation is still very precarious and the police cannot provide any protection to any Egyptian citizen in any part of Egypt. Not long ago, the Attorney General himself was murdered.
   Eventually, psychological depression and anxiety led me to tell a few friends about my fears and they suggested I see a lawyer.

3. The delegate refused to grant the visa and the applicant applied for review.

4. On 20 April 2021 the Tribunal wrote to the applicant via his last notified email address advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10.30a.m on 11 May 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

5. The Tribunal confirmed that the hearing invitation was sent to applicant at the most recently advised email address. A SMS hearing reminder was also sent on 4 May 2021 and 10 May 2021 to the applicant’s last notified mobile phone number however a delivery failure message was received in response to both reminders.

6. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Egypt and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. 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. Although the concept of onus of proof is not appropriate to administrative inquiries 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.)

16. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is an Egyptian national. It is claimed in the applicant's protection visa application that he fears harm in Egypt because of a dispute akin to a tribal feud.

17. The claims before the Tribunal are lacking in essential detail. While the applicant stated in his application that he fears returning to Egypt because of the chance of a revenge encounter in his village, there is also little detail in relation to why he cannot relocate.

18. The applicant was invited to appear before the Tribunal but did not do so.

19. As a consequence, the Tribunal has been unable to question him further as to the veracity of his claims, leaving his claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to Egypt in the foreseeable future.

20. 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).

21. 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). Given the little detail in relation to why he cannot relocate and given the Tribunal's inability to question him about the veracity of his claims, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. 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

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Angela Cranston
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …