1802191 (Refugee)

[2021] AATA 5081

1802191 (Refugee) [2021] AATA 5081 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802191

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Shahyar Roushan

DATE:24 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2021 at 3:29pm

CATCHWORDS

REFUGEE – protection visa – Egypt – Federal Circuit Court remittal – religion – non-committed believer of Sunni Islam – perceived as being contrary to Sunni Islam – fears harm from family, community and the authorities – significant inconsistencies in evidence – credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 first arrived in Australia [in] July 2008 as the holder of a Student [visa]. He was granted a further [student] visa on 26 September 2013. The applicant travelled back to Egypt on four separate occasions: in May 2010, in April 2012, in November 2013 and in December 2016.

3. The applicant lodged an application for a Protection visa on 31 March 2014. On 21 November 2014, a delegate of the Minister refused his Protection visa application.

4. On 5 January 2015, the applicant applied for a review of the delegate’s decision. On 24 August 2016, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.

5. On [date] September 2016, the applicant applied to the Federal Circuit Court of Australia for a review of the first Tribunal’s decision. On [date] December 2017, the Federal Circuit Court remitted the matter to the Tribunal to be reconsidered in accordance with the law.

6. The matter was reconsidered by the presently constituted Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

7. According to the information provided in his Protection visa application, the applicant is a [age]-year-old national of Egypt and a Muslim. He has never been married. He was born in Qalyubia, Egypt and resided at a single address before coming to Australia. He attended [University 1] between 2006 and 2008. His parents, [siblings] reside in Egypt. He has [other siblings living in various countries]. He has not listed any previous employment in Egypt.

8. In response to questions in relation to his reasons for claiming protection, the applicant made the following claims:

9. He is from a ‘moderately religious family’ but was expected to conform to all aspects of Sunni Islam in Egypt. While attending college, he had discussions with a student named [deleted], who had ‘religious ideas that were different to the usual in Egypt’. They were reported to the ‘principal’ as they were perceived to be ‘opposed to Islam’. His parents were also called to the school and were told that he was ‘a kafir’. His parents insisted that he should spend a few weeks with his uncle to make sure his religious ideas were ‘correct’.

10. He considered himself a ‘moderate Sunni’ until his return trip to Egypt in 2012. During that visit, he noticed significant changes in people’s religious attitudes, including his sister wearing a niqab. Following his return to Australia, he started reading the Quran more closely and talking to people at the mosque. In the middle of 2013, he became convinced that he could not believe in Sunni Islam, that there is only one type of Islam and that the Quran is the only book.

11. Towards the end of 2013, he was ‘scheduled’ to return to Egypt in order to get married. When he spoke to his fiancée about his beliefs, his fiancée and her family ‘refused’ him. While in Egypt during that trip he became vocal and was unable to accept Sunni traditions. He had many arguments with his family, friends, and neighbours as he refused to pray. His local Sheik tried to ‘correct [his] thinking’ but he refused to listen. His parents also tried to seek medical help for him.

12. He is a ‘totally non-committed believer of Sunni Islam’ and considers himself a ‘true Muslim’ that follows the Quran only. If he returns to Egypt, he will be forced to practise Sunni Islam, or he will be harmed and possibly killed.

13. He fears harm from his family, community and the authorities as only Sunni Islam is accepted in Egypt and he is considered a Kafir.

    Supporting documents

14. In support of his application, the applicant submitted undated letters of support from his cousin, [Mr A], and a friend, [Mr B].

15. In his letter, [Mr A] stated that the applicant only believes in the Quran and does not believe anything else such as the hadith or other Islamic books. [Mr A] stated that he does not like to listen to what the applicant says because he does not share his beliefs. His parents have also told him that the applicant’s parents do not accept what the applicant says.

16. [Mr B] stated in his letter that he had met the applicant through his cousin, [Mr A], and had conversations with him about Islam. He stated that they both believe in the Quran and that the applicant has spoken to people he knows about the ‘right Islam’ which all Muslims should follow.

    The interview

17. The applicant attended a Departmental interview on 5 September 2014. Where relevant, the applicant’s evidence at the interview is referred to in the Tribunal’s analysis below.

    The delegate’s decision

18. The delegate accepted that the applicant practised Sunni Islam in Egypt. He accepted that after he arrived in Australia in 2006, the applicant questioned his beliefs and did not strictly adhere to the practise of his faith. The delegate further accepted that the applicant did not marry his fiancée in Egypt due to differences in their religious beliefs. Although the applicant denied being a Koranist (or Quranist), due to the similarities between his views and those shared by the Koranists, the delegate considered the available country information in relation to the situation of Koranists in Egypt. On the basis of the applicant’s evidence at the interview and the country information before him, the delegate was not satisfied that the applicant would be harmed by other Muslims in Egypt because he follows the Quran only. The delegate found that the applicant does not face a real chance of persecution for any Convention reason, nor does he face a real risk of being subjected to significant harm if he were to be returned to Egypt.

    Review application

    The first Tribunal

19. On 5 January 2015, the applicant applied for a review of the delegate’s decision. He was represented in respect of the review by [Ms C], a registered migration agent.

20. On 10 May 2016, the Tribunal received a faxed copy of the delegate’s decision record from [Ms C].  

21. On 15 August 2016, the first Tribunal received two letters of support from [Mr D] and [Mr E]. In his undated handwritten letter, [Mr D] stated that he lived with the applicant as his flatmate for two years and they shared their opinions about life. [Mr D] stated that the applicant only believes in the Holy Quran and is not interested in anything else.

22. [Mr E] stated in his letter that he met the applicant through a mutual friend in February 2015. He spoke to the applicant more than once about his beliefs and he only believed in the Quran and ‘nothing else’.

23. The applicant appeared before the first Tribunal for a hearing on 16 August 2016 (the first hearing). The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, his oral evidence to the first Tribunal is referred to in the Tribunal’s reasons below.

24. On 24 August 2016, the first Tribunal affirmed the Department’s decision to refuse to grant the applicant a Protection visa.

25. On 20 September 2016, the applicant applied for judicial review of the first Tribunal’s decision.

26. On [date] December 2017, the Federal Circuit Court remitted the matter to the Tribunal for reconsideration. The Court noted that the Tribunal failed to address the question of whether the applicant’s fear of persecution was well-founded and so constructively failed to exercise its jurisdiction. It noted the applicant’s evidence at the hearing that he did not go around talking about the ‘true Islam’ everywhere he went in Egypt, because he feared that if he talked too much there, his life would be exposed to danger. The Tribunal’s reasons for finding there was no well-founded fear of persecution were based on the acceptance that the applicant’s future conduct would be similarly constrained.

    The present Tribunal

27. The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

28. The applicant appeared before the Tribunal on 11 August 2021 via video to give evidence and present arguments (the second hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

29. 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.

30. 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).

31. 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.

32. 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’).

33. 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.

    Analysis, reasons and findings

34. The Tribunal did not find the applicant to be a reliable, 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 significant inconsistencies in his evidence, the unpersuasive nature of some key aspects of his claims and other reasons detailed below. 

35. In his Protection visa application, lodged on 31 March 2014, the applicant expressly stated that he was not married. In the same form, in response to questions in relation to his reasons for claiming protection, the applicant stated that he had travelled to Egypt towards the end of 2013 in order to get married. However, his fiancée and her family ‘rejected’ him. In response to question 43 of the form (‘why did you leave [Egypt]?’), the applicant stated:

    I was scheduled to return to Egypt at the end of [2013] to many but my clearer understanding of Islam now became a major issue in my life… I returned to Egypt and during my conversations with my fiance, I raised the issue of my beliefs. Initially the reaction was of disbelief and after the involvement of family members, my fiance and her family refused me. (sic)

36. According to the Department’s decision record, the applicant provided the following information to the delegate at the Departmental interview.

37. The applicant’s family in Egypt arranged his engagement to a close family relative whilst he was living in Australia. The applicant departed Australia in November 2013 to marry his fiancée [in] December 2013. Prior to his wedding, he held religious discussions with his fiancée and her brother. These discussions were reported to his fiancée’s parents, who accused him of infidelity to Sunni Islam. As a consequence, his wedding was cancelled. On [date] January 2014, following the cancellation of his wedding, he met with a Sheikh to seek clarification with regards to his understanding of Islam. The Sheikh subsequently suggested to the applicant’s parents that he see a psychologist. Following the meeting with the Sheikh, the applicant experienced problems with his parents and neighbours, who told him that he had psychological problems.

38. At the first hearing, held on 16 August 2016, the applicant was asked ‘have you ever been married?’. He replied ‘no’. The applicant also told the first Tribunal that after he spoke to his parents and fiancée about his views, they told him he was crazy and had to leave.

39. At the second hearing, however, in response to the Tribunal’s questions, the applicant stated that he is married and has two children. He stated that he married his wife, [name deleted], in 2012. He said he got engaged in 2010 and married his wife, a distant relative, when he travelled back to Egypt in 2012. He and his wife have two [children]. The applicant stated that upon returning to Egypt in 2012, he had discussed his religious ideas with his family, his newly wedded wife and others, but his wife was the only one who had believed him. He further stated that he did not discuss his views with anyone during his trip to Egypt in 2013 because ‘they’ thought he was crazy.

40. As it was put to the applicant at the second hearing, the above evidence casts serious doubt on the veracity of his claims. The applicant’s account of his experiences in Egypt during his 2013/2014 trip to Egypt, namely his intention to get married on a specific date at that time, his rejection by his prospective wife and her family, the cancellation of the wedding, his subsequent meeting with the Sheikh and the response of his parents and others, were key components of his claims and the reasons why he was seeking protection. The applicant’s evidence at the second hearing suggests that there was no truth to this account. When the applicant was asked at the second hearing why he had stated in his Protection visa application he was not married, he said he told his migration agent that he was married but his agent did not mention this in his Protection visa application. The Tribunal put him that, even if it were to accept this explanation, he had expressly told the delegate at his interview that his wedding had been cancelled and had given evidence at the first Tribunal that he was not married. He responded that he could not remember what he had previously said but his evidence at the second hearing was the truth.  

41. The Tribunal does not accept the applicant’s explanations to satisfactorily address the concerns identified above. Further, the applicant’s evidence at the second hearing casts serious doubt on the truth of his evidence regarding discussing his claimed ideas with others and their subsequent reaction. As already noted, the applicant had claimed throughout the process that he was never married and that he was rejected by his prospective fiancée and her family in 2013/2014 after they had become aware of his views. His evidence at the second hearing suggests that he was not rejected by his fiancée, who had proceeded to marry him a year earlier. The applicant did not put forward any claims to suggest that he was adversely treated by his in-laws following the marriage. Indeed, when the applicant visited Egypt in 2013/2014 his wife had already given birth to their first child. The Tribunal is of the view that the applicant’s account of his experiences in Egypt during his 2013/2014 visit as put forward in his Protection visa application, in his evidence to the delegate (as reported in the Department’s decision record) and in his evidence to the first Tribunal is false and a fabrication. The Tribunal does not accept any of these claims.

42. Moreover, in his application for a Protection visa, the applicant stated that he had remained ‘a moderate Sunni’ until his visit to Egypt in 2012. During that trip, he ‘began to get confused with what I really believed.’ After he returned to Australia, he spent ‘most of 2013 focused on reading the Quran more closely’ and about ‘mid 2013’ he started to become ‘convinced’ that he could not ‘believe in or practice Sunni Islam.’ He also stated in his Protection visa application:

    During the last 3-2 weeks in Egypt [in 2013/2014] I suddenly developed a connection between what my mind was telling me and my emotional and spiritual beliefs. I became vocal and unable to accept Sunni traditions... Many arguments developed between me and my family, friends and neighbours…

43. In his evidence to the first Tribunal, the applicant had stated that it was not until 2013 that he started his in-depth research into Islam by delving into the Quran and studying the hadith (the Bukhari collection) in order to form the views that he subsequently adopted. At that hearing, the Tribunal asked the applicant ‘where was it that you did the deep religious study that brought to your attention that the Sunnah and the Hadith are the places where people derived their Sunni practise and that this is at odds with the Quran?’ The applicant responded: ‘in Australia and specifically in 2013.’ 

44. At the second hearing, however, the applicant stated he started his thinking and research into Islam after he had returned to Australia from his visit to Egypt in 2010 and that he formed his convictions in 2012. He stated that he had discussed these ideas with his family, his wife and others when he returned to Egypt in 2012, but not in 2013/2014 due to the adverse reaction he had faced a year earlier.

1. When the inconsistencies in his evidence was discussed with him at the second hearing, he stated that he did not form his views over night and that it was a process over a number years. He might have started to reflect about these matters in 2010, but he delved in deeper in 2012 and adopted his beliefs in 2014. The Tribunal considers it a reasonable explanation that a person may develop and adopt their religious views or beliefs over a period of time. However, this explanation does not satisfactorily address the applicant’s claims in his Protection visa application that he was a moderate Sunni until his 2012 visit to Egypt and his unequivocal evidence at the first hearing that it was specifically in 2013 in Australia that he engaged in an in-depth study of Islam. The Tribunal also appreciates that passage of time may make it difficult for anyone to recall specific timelines relating to thought processes and religious ruminations 7 or 8 years earlier. Nevertheless, the Tribunal remains concerned as these claims intrinsically relate to the applicant’s unreliable, improvised and highly dubious claims regarding his experiences in Egypt. To illustrate, the applicant’s evidence to the first Tribunal to the effect that he engaged in in-depth research and subsequently adopted his views in 2013, purportedly supported his false and self-serving claims that he travelled to Egypt at the end of 2013 with the intention of getting married, only to be refused by his fiancée and her family and face other problems because of his religious views. His evidence at the second hearing that he began reflecting in 2010 about the matters that shaped his claimed views and delved in deeper in 2012, appears to have been similarly designed to support his claims at the second hearing that he had shared his ideas with his newly wedded wife, his family and others when he travelled to Egypt in 2012. On that occasion only his wife had accepted his views but based on the disapproving reaction of others, he had decided not to publicly disclose his views when he travelled back to Egypt at the end of 2013. Passage of time does not explain these two radically different and irreconcilable accounts.

2. For all the above reasons, the Tribunal is of the view that the inconsistencies in the applicant’s testimony and other concerns identified fundamentally undermine the reliability of his account, the credibility of his claims and the truth of his evidence. The Tribunal finds the applicant not to be a reliable, credible and truthful witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose.

3. The Tribunal has considered the letters of support submitted by the applicant to the Department and the first Tribunal. The letters, which are purportedly authored by a cousin and three acquaintances in Australia, essentially state that the applicant believes in the Quran and nothing else. The letters suggest that the opinion of the authors regarding the applicant’s beliefs was formed following conversation with him ‘abut Islam’. The letters are otherwise scant on details and do not offer any other meaningful information regarding the applicant’s claims. Whilst the letter from the applicant’s cousin appears to suggest that the applicant’s parents do not accept his views, the letter does not contain any other information or details as to what this exactly means or how [Mr A] had become aware of this information. The applicant did not submit more updated or contemporary evidence in support of his claims. The Tribunal finds that the letters and their contents do not overcome the significant concerns identified by the Tribunal with respect to the applicant’s evidence and do not remedy the defects in the credibility of his claims. The Tribunal places very little weight on these letters. Whilst the applicant may have had inconsequential conversations about Islam with a handful of individuals in Australia, the Tribunal does not accept any of the applicant’s claims regarding his purported religious views.

4. The Tribunal finds that the applicant has fabricated and concocted his claims for protection to achieve an immigration outcome. The Tribunal does not accept that the applicant has ever entertained views radically different to mainstream Sunni Islam or that he has ever been called or accused of being a kafir any anyone, including college officials. The Tribunal does not accept that he has genuinely adopted the views he claims to have or that he adheres to those views. The Tribunal does not accept that he has expressed these views or any views that may be perceived as being contrary to Sunni Islam to anyone, including his parents, his wife, his in-laws, members of his extended family, neighbours or anyone else in Egypt. The Tribunal finds that he has not expressed these views because he does not genuinely hold or adhere to these views and not because he is fearful of facing any harm or consequences. The Tribunal does not accept that he had discussed any views or religious ideas with anyone in Egypt during any of his visits to Egypt. The Tribunal finds that the applicant got engaged to his fiancée in 2010 and married her in 2012 without any difficulty or any opposition from her or her family for religious reasons. The Tribunal does not accept that he had or has ever faced any form of rejection by his wife and her family for the reason of his religion, or indeed any other reason. The Tribunal does not accept that he had travelled to Egypt in 2013/2014 to get married. The Tribunal does not accept that his wedding was cancelled on that occasion. The Tribunal does not accept that he had to see a Sheikh due to his purported religious beliefs. The Tribunal does not accept that a recommendation was made by the Sheikh for the applicant to see a psychologist or that his family believe he is psychologically ill. The Tribunal does not accept that his family, friends, neighbours and the Sheikh tried forcing him to follow Sunni Islam The Tribunal does not accept that the applicant had faced any problems or difficulties directed at him or caused by his parents, neighbours, extended relatives or anyone else for the reasons he has provided. The Tribunal does not accept that he was ever verbally abused, harassed, or otherwise harmed in any way by anyone in Egypt due to his religious beliefs or for any other reason. The Tribunal does not accept that the applicant will be coerced or harmed in any way for the reasons he has provided if he were to return to Egypt.

5. After considering all of the applicant’s claims, the Tribunal finds that there is no real chance that he will face serious harm in Egypt for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s 36(2)(a).

6. Having rejected the applicant’s claims and having concluded that he 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 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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 criteria in s.36(2).

   DECISION

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

   Shahyar Roushan
   Senior Member