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1727997 (Refugee)

1727997 (Refugee)

Case [2021] AATA 4300 3 August 2021

Statutory Construction

Immigration

Administrative Law

Statutory Interpretation

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1727997 (Refugee) [2021] AATA 4300 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1727997
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Jason Pennell
DATE:3 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 3 August 2021 at 10.02am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Sunni Muslim – imputed religion as Quranist convert – daughter’s conversion to Quranism – imputed political opinion – hostile to government due to son’s political activities– fears harm from daughter’s husband’s family –– particular social group – Sunni Muslim whose child has converted to another religion – no family remaining in Egypt –economic hardship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
NAQJ v MIMIA [2004] FCA 946
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 57
Saliba v MIMA (1998) 89 FCR 38
SCAT v MIMA [2003] FCAFC 80
SCAT v MIMIA [2002] FCA 962
VCAD v MIMIA [2004] FCA 1005
WZAOO v MIAC (2012) 134 332

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 29 January 2015. The delegate refused to grant the protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant appeared in-person before the Tribunal on 19 March 2021 to give evidence and present arguments. In addition, [Ms A] (the applicant’s daughter) appeared before the Tribunal to give evidence and make submissions in support of the applicant.
The hearing was assisted by an interpreter in the Arabic and English languages. The Tribunal was satisfied the applicant understood the interpreter and the questions put to her during the hearing. The Tribunal further notes that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1727997 (Refugee)

Details

AGLC: 1727997 (Refugee) [2021] AATA 4300
Case: [2021] AATA 4300
Decision Date: 3 August 2021

CaseChat Overview and Summary

The applicant, a Sunni Muslim from Egypt, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear harm due to his daughter's conversion to Quranism, which he alleged had led to his imputed political opinion hostile to the Egyptian government, stemming from his son's political activities. He also asserted membership in a particular social group, defined as a Sunni Muslim whose child has converted to another religion, and noted he had no family remaining in Egypt, facing economic hardship. The decision under review was made by the Minister, and the application for review was heard by Jason Pennell.

The primary legal issues before the court were whether the applicant had a well-founded fear of persecution for a reason specified in section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether he held an imputed political opinion or belonged to a particular social group. The court was required to assess the applicant's claims regarding his imputed political opinion, linked to his son's political activities and his daughter's religious conversion, and his claimed membership in a particular social group, considering the familial context of his daughter's conversion and his lack of remaining family in Egypt.

The court found that the applicant's imputed political opinion was not well-founded, as the evidence did not establish a real chance that the Egyptian authorities would attribute to him a political opinion hostile to the government based on his son's activities. However, the court determined that the applicant did belong to a particular social group, defined as a Sunni Muslim whose child has converted to Quranism, and that he had a well-founded fear of harm from his daughter's husband's family on account of his membership in this group. The court also considered the applicant's lack of family support in Egypt and his economic hardship as relevant factors.

Consequently, the court remitted the decision to the Administrative Appeals Tribunal for redetermination.

Orders