1811003 (Refugee)

1811003 (Refugee) [2021] AATA 4411 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811003
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:17 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 September 2021 at 1:30pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Muslim – non-Sunni or infidel – acceptance of the Qur‘an – does not accept any part of the Sunnah or ahadith – credibility concerns – lack of knowledge of the Qur’an’s views on praying – inconsistent evidence – migration history – delay in seeking protection – Female Genital Mutilation (FGM) – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 Home Affairs on 26 March 2018 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 20 April 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection Visa Application
In his protection visa application the applicant made the following claims:
During the last few years my religious belief and practice has started to change and is no longer consistent with Sunni Islam practiced in Egypt. In 2014 when I was in Egypt I noticed that my beliefs had become noticeably different. I became involved in a number of discussions about Islam with family and friends-who commented that I was kafir in my beliefs. My beliefs at the time were not radical or very different but I was just questioning some of the basics in Sunni Islam and the Hadith.
A few months ago I returned from another trip from Egypt. This time l experienced more opposition to my beliefs. I did not have any specifically strong beliefs against Sunni Islam but I questioned the basis for a lot of Sunni practice. I had intense conversation with my local Sheik who declared me an infidel and spoke to my family and in laws about my beliefs in the hope that they will set me straight. When I returned to Sydney l spoke about what had happened to me to my Christian Egyptian friend named [Mr A] and I started to exchange what we each understood about each others religion. I was surprised that certain things that Islam taught us about Christianity were in fact incorrect and that [Mr A] knew things about Islam that I did not know.
[Mr A] was able to tell me what the Quran said or didn’t say about certain things. This made me look into my religion in a lot-more depth-than ever before. I have started to differentiate between what I was taught by Sheiks and the Hadith and what was actually in the Quran. It has now become very clear to me that I am a Muslim and not a Sunni. I believe in the Quran only and my belief is very different to that of Sunni -Muslims and what is accepted in Egypt.
I will be accused of being an infidel. I will be persecuted and possibly killed. My wife and child will be taken from me.
AAT Hearing
The applicant claimed that if he returned to Egypt his own family would want to kill him. They may also report him to the police or the army because he speaks about religion. Asked why his family would try to kill him, he claimed that he told the family about their religion and they said he was wrong and an atheist and infidel. They may also report him to the police or army would jail him for contempt of religion because they did this to anyone who spoke out about Sunni Islam.
He began to talk about their religion in 2014 when he was there but they didn’t take him seriously. When he went there in 2015 and talked about religion they started calling him an infidel because he disregarded the hadith and believed only in the Qur’an. Asked who in his family would kill him, he claimed that it would be his siblings, particularly his eldest brother who was responsible for the family after his father died. He had [number of] brothers and [number of] sisters. Asked if all the brothers would kill him, he said they all listened to the oldest brother and they believed he was harming their religion. Asked again who he thought would kill him, he said that his eldest brother and the brother in the army were radicals. He had another brother in the police who was also saying he was being atheist.
Asked about his other brothers, he claimed they were fine and spoke to him. The two oldest ones were in control and the others listened to him. The oldest was called [Brother B] and he worked on the land, [Brother C] was in the army, [Brother D] was in the police. They had always been in the army and police. One other brother worked on the land and the other rented a [shop] and worked there. It was medium-sized. He was the only one who works there but sometimes people came and helped. His name was [Brother E] – he returned from [Country 1] 10-15 years ago and started the shop. [Brother F] (another brother) also worked on the land. Another brother lived in [Country 2] and worked as a cleaner. He was a permanent resident after he went there as a tourist. Asked how he went from tourist to permanent resident, he claimed that he wasn’t sure. He didn’t know if he had a work contract. This was around 2005-06.
Asked which brothers he was afraid of, he claimed that he was afraid of the two oldest, the ones on the land and the one in the army. The all made him afraid. The one on the police also threatened him but the older ones are more scary. Asked which brothers he was afraid would kill him, he claimed that [Brother B] and [Brother F] the worst because they were the oldest. Asked if he was afraid of [Brother D] or [Brother C], he claimed that he was afraid – all of them didn’t want him and they had told him that he was dead to them. Asked about [Brother E], he said that none of them wanted them and called him an atheist and that he had impacted them all.
Asked what their problem with him was, he claimed that he spoke to them about religion and that hadith came after the Qur’an and about prayers and zakat. They rejected this and said that they had been brought up with the hadith. Asked what he believed in, he said he believed in the Qur’an and that everything was in the Qur’an. It was put to him that he must know it well, and he said that he reads it but doesn’t know the verses by heart. He was asked why this was the case as he must know it well if he was rejecting the Sunnah based on what was in the Qur’an.
He said the Qur’an said nothing about the hadith as they came well after the Qur’an. Asked why his views were a problem and if he adhered to the Five Pillars, he claimed that he did but in the shahada he didn’t mention Muhammad as the Prophet. Asked why there was such an issue he said that for example God never mentioned five prayers, it only said three and there were more than five pillars. Asked what the Qur’an actually said about prayers, he said that it only mentioned the morning, noon and night prayers. Asked how many times the Qur’an mentioned prayers, and whether he could point the member to the verses that mentioned prayers and their timings, he said he hadn’t memorised any verses but knew that it never mentioned anything about afternoon or sunset prayer. Asked again if the Qur’an never mentioned afternoon prayers, he said that it never mentioned afternoon. He used to pray sunset prayers but it doesn’t ask for it.
Asked if he only believed what was in the Qur’an and he said he did. It was put to him that the Qur’an mentioned several times when someone should pray, and he said that it mentioned prayer but the Qur’an never set the afternoon or sunset prayers. Given he claimed to adhere only to the Qur’an, he was asked how many verses in the Qur’an addressed praying, and he said that he didn’t know them by heart and there was a verse about praying and paying the zakat and another about praying but he didn’t know them by heart. It was put to him that he had told the Tribunal that the Qur’an only said one needed to pray three times daily. He then said that the Qur’an never mentioned the extra Ramadan prayers.
It was put to him that the issue was whether the Qur’an said one only had to pray three times a day which is what he claimed – he agreed that the Qur’an said only to pray three times a day. He was asked again where the Qur’an mentioned the need to pray only three times a day and he said he didn’t know the verse but he could get it. Asked how many times the Qur’an mentioned the need to pray only three times a day, he said it was in many verses. He was asked to confirm that these verses only directed people to pray morning, noon and night before one went to sleep given his years of reliance on the Qur’an for his religious direction.
He said that the Qur’an mentions three prayers, it doesn’t say that five prayers need to be prayer. Asked what other elements of the Sunnah that he disagreed with in favour of the Qur’an, he said that there were people in Egypt, including his siblings that followed hadith that the Qur’an says no. He was asked for examples where he disagreed that got him into trouble, and he claimed that in Bukhari and Muslim there was a hadith that the Prophet said there were ten people going to heaven after him, but the Qur’an said the Prophet did not know about their future so the two were incompatible.
Asked if he went to mosque in Australia, he claimed that he used to but didn’t lately. He got up, prayed and then went to work. He went to prayers on Friday a bit before but now he worked so he couldn’t. It was put to him that the Qur’an said that one should stop work and go to prayers on Fridays so it was strange that he didn’t. He said in Egypt Fridays weren’t a day of work and the member said he understood. He was asked what the Qur’an said about Fridays and praying and work, and he said that it said they should pray on Fridays at lunch and that if one heard the call to prayer then one should pray. Asked what the Qur’an said about work on Fridays when it was time to pray, and he said that if it was time to pray and there was a mosque nearby one could take a break and pray. The time to pray changed depending on the season.
It was put to him that he had not been to mosque for a long time and he said that sometimes he may work half a day or a day and so couldn’t pray. He worked in [Industry 1]. It was put to him that he could surely work his [job] around prayer time. He claimed that he could be killed because he believed in what the Qur’an said and yet it told him to pray and not work at prayer time and yet he was happy not to follow this direction. He said on Friday he may be working for a company or sometimes for himself. If for himself then he would sometimes go if he had a half day.
Asked if he had any social media presence where he put out his views about the Qur’an being the only source of true guidance in Islam, he said he accessed the internet and read about the Qur’an but didn’t really know how to use the internet much. Asked if he had a social media profile, he claimed that he browsed the internet a lot. Asked if he had a [Social media 1] page or [Social media 2] site, he said he had a [Social media 1] page. Asked if he talked about the Qur’an and hadith on this page, he said he didn’t use it much and didn’t know how to use the internet properly. It was put to him that he had been in Australia since 2007 and had done a range of short courses in Australia so surely would be quite familiar with the internet. He said he browsed the internet but there was a channel he didn’t know how to use. It was put to him that he had a [Social media 1] page and he said he used it but didn’t post anything on it. His family assumed he was an infidel.
Asked if there was any evidence that he was opposed to the hadith such as writing on his [Social media 1] page or evidence that he had spoken to a sheikh about his views and that could attend as a witness. He said he hadn’t posted anything on line and he spoke to sheikhs but nobody would oppose him because it was safe. They would refuse to talk to him when they realised he was correct. Asked if he had any evidence that he had spoken to a sheikh in Australia about his views, he claimed that he spoke to people in Egypt and they told his siblings. He was asked why he hadn’t provided any evidence of having spoken to sheikhs in Australia about the issue, He said they would refuse if he asked them because he was a Sunni.
It was put to him that the Tribunal was unaware of any country information that the Qur’aniyyun were targeted in Egypt. He was asked whether he could provide any and if not why not. He claimed that he didn’t need to be a Qur’aniyyun to be targeted and there were many people outside Egypt who were persecuted for their religion. He quoted the name of someone and the Tribunal noted he was unaware of this person or their circumstances and was asked if he could provide some country information about them. He claimed that if someone spoke about religion in Egypt they were taken to detention and then he spoke about some people who were in contempt of religion and had to leave the country. He was told that he would be given time after the hearing to provide country information in support of his claim including the people he had mentioned and their relationship to his case. He said there was no common ground but anyone who spoke about religion would be treated this way.
It was put to him that a verse in the Qur’an spoke about worshipping in the morning and the evening, the afternoon and at noon. This would indicate four daily prayers. He was asked if he was familiar with this verse and he said that he wasn’t and repeated that the Qur’an only mentioned morning, noon and night. He was asked why this verse mentioned four, and he said again that he didn’t know the verse. Another verse was read out that mentioned prayers before sunrise and sunset which were two prayers. He said this was the evening prayer and it was agreed this was salat maghrib and fajr prayers. The same verse also said to glorify him at night which would be salat aisha’.
He said the sunset and evening time were considered the night prayer – it was put to him that two separate times were mentioned (before sunset and at night). In these two verses there was reference to five prayers and he was asked what his response to this was. He claimed that when he read the Qur’an it mentioned three prayers. God never mentioned after sunset. It was put to him that the verses appear quite explicit and he didn’t appear to know of their existence which would not indicate that he knew much about the Qur’an. He said he knew the Qur’an but it didn’t specify the prayer times. He was told the particular verses and was told that he could provide a response as to why he didn’t believe these verses referred to separate prayers and why he was unaware of these verses given their importance to his belief system. He was also told of another verse that mentioned night prayers.
He was asked to confirm hat he was afraid of being killed by his brothers from 2015 when he left Egypt. He said that when he departed that if he returned they would kill him or report him to the police. He left Egypt in February 2016. He was told about s 424AA and it was put to him that when he came back to Australia in February he had a hearing with the Tribunal regarding his student visa. He agreed. Because of his visa history there were concerns that he wasn’t actually a student but was trying to stay for economic reasons.
He was asked why he had to do the course in Australia and he couldn’t do it back in Egypt, and he told the Tribunal that there were many benefits to an Australian qualification and it would help his employment when he returned to Egypt. He also said his brother had a big shop with lots of workers and he had offered the applicant a job in marketing or in personnel to look after all the workers. Yet at the hearing today he had said that when he left Egypt his brothers said they would kill him if he returned or report him to the police. This was inconsistent with what he had told the previous Tribunal just after he returned from Egypt.
He had also not mentioned today that any of his brothers had any big shop with lots of workers that required a personnel manager. These inconsistencies went to the issue of his credibility and the truthfulness of his claims. He claimed that his main aim for his student visa was to bring his wife over. He was asked to address the inconsistencies in what he had told the two Tribunals, and he claimed that in 2016 his brother did have a shop and they could enlarge his business if he got his qualifications. It was put to him that he had not said this to the previous Tribunal and he still had a one-man shop so this didn’t appear to ring true.

He claimed that before the revolution his brother had one or two shops with workers but had to let one shop go because the revolution depressed things. Asked when the revolution occurred, he said it was 2011 – it was put to him that he told the Tribunal in 2016 that his brother had a very large shop so this didn’t appear to be correct.
He said that his brothers only took him seriously in 2015 and when the Tribunal asked him in February if he would work in Egypt he said he would. When they found out he lost his visa they threatened him even more. It was put to him that this made no sense as he told the Tribunal today that he had been threatened with death as he left Egypt and before he went to the Tribunal in 2016. This made no sense that he would tell the previous Tribunal he wanted to return to Egypt.
It was put to him that he had had many student visas previously, had a student visa refused, appealed and lost, sought Ministerial intervention and wasn’t allowed. He then sought protection. This, as well as his lack of knowledge of the Qur’an’s views on praying and his inconsistent evidence made the Tribunal concerned that he simply sought a protection visa to remain in Australia and not because he feared harm in Egypt. He claimed that he had been away from his family for more than five years and he wasn’t lying.
It was put to him that he had said he wanted to raise other things and now was his chance. He said his daughter was [age] and they wanted her to be circumcised and his wife was exhausted. They had been threatening to circumcise her. His wife lived for a while in his apartment and sometimes with her family. Her father said the applicant was no longer her husband as he had been away for so long. His family gave her bad looks. Asked how long they had been threatening to circumcise her, he said they had been strict about it for 18 months. His wife wanted to come to Australia but she wasn’t allowed. They had been threatening to do it but his wife had been delaying them – asked how long she had delayed them for, he claimed it was since his daughter was three or four.
His nieces had had it done and she would have to have it done before she was 10. Asked if his father-in-law believed in it, he said that he did as his wife had been circumcised. He was religious but was empathetic at home with his children. He was asked why his wife didn’t just live with her father as he was empathetic with his children and nothing had happened for the last five years regarding the circumcision. He claimed that he was empathetic inside the house before she was married, but he still got her circumcised.
Asked where he lived, he said it was in a governorate near Cairo. In [named] government. It was put to him that country information indicated that female circumcision was more common in rural areas not urban ones. He was asked why his daughter would be at risk. He claimed the hadith said she should be circumcised – he was asked which ones referred to this. He said that he meant Sunnis in general (his family in particular) said this. Asked if it was legal in Egypt, he claimed that there were many people who did it. Asked again if it was legal he said he didn’t know but in the rural areas and his they did it. He didn’t know if it was legal or not but thought that if doctors did it then surely someone would report them but he didn’t know the laws.
Under s 424AA it was put to him that he had previously described his father-in-law during his interview as liberal and democratic with his children, yet his claim to want to circumcise the applicant’s daughter seemed inconsistent with this claim. He said he meant that he was empathetic with them inside the house but he had circumcised his daughter and was traditional in most ways. It was put to him that this relied entirely on his oral evidence and there were concerns with his oral evidence to date at hearing. He said he was truthful. Asked why he described his father-in-law as liberal and democratic, he claimed that he didn’t say he was liberal or civilised, just that he would joke with them around the house, not that he would give them complete freedom.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia on a student visa [in] September 2007, returned to Egypt on 5 occasions, last returning to Australia [in] February 2016. He applied for protection on 20 April 2016. I have sighted a copy of his passport and accept that Egypt is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, 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 telephone.
The applicant is a [age] year-old, married male. He claimed that he feared being killed or imprisoned in Egypt because he had a different religious ideology to others, in that he believed in the Qur‘an but didn’t agree with the Sunnah.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Qur’an claim
I do not accept that the applicant accepts the Qur‘an (literally the word of God) but does not accept any part of the Sunnah or ahadith because he believes that they are incorrect traditions created by people well after the prophet’s death, and that this would see him killed by his siblings or imprisoned by the authorities after his siblings informed on him.
To begin with, Islam is itself an interpretive religion given the nature of the sources of Islamic law; the Qur’an (the word of God revealed to Muhammad) and the Sunnah[1] (collections of the sayings and actions of Muhammad). The Sunnah is based on collections that contain accounts of varying degrees of authenticity and are contained in several collated works that may differ between themselves. The fact that there are five ‘schools’ of Islamic law (four Sunni, one Shi’a) reflects the diversity of opinion with respect to the Sunnah.
[1] accessed 1 September 2020
The Tribunal is conscious of the fact that it should not set some arbitrary standard of religious knowledge that the applicant should have in order to convince the Tribunal that their claimed belief is genuine. However, in order to establish and sustain a belief that the Qur’an contains the complete truth and that the sunnah does not, it is reasonable to believe that the applicant would at least have a working knowledge of those elements of the Qur’an that he believed gave firm guidance on issues that were contradicted, or not covered in the Sunnah, and a working knowledge of various ahadith that were in contradiction with the Qur’an in order to guide his belief and the practice of that belief.
Yet on even a straightforward issue that he claimed to take exception to the sunnah he displayed a poor knowledge of the Qur’an. He evinced a belief that he need only pray three times a day (morning, noon and night) rather than five (as the Sunni Islamic schools of law agree is the case) as this was the direction given in the Qur’an. He was unable to say how many times the Qur’an gave direction regarding prayer, nor was he able to point the Tribunal to that verse of the Qur’an that he claimed directed only three prayers were to be done.
While it is reasonable to accept that a person without detailed religious training may be unable to recall the exact verse in the Qur’an that directs praying only three times, the Tribunal was concerned that he didn’t know what the Qur’an said about praying in more general terms, or whether there were different directions given in different verses for instance. He was certain however that the Qur’an never mentioned the need to pray in the afternoon or at sunset.
Yet the Qur’an mentions prayer times in several verses. In verse 30 for example it speaks of glorifying Allah ‘in the evening and in the morning…as well as in the afternoon and at noon’ while in verse 50 it speaks of glorifying God ‘before sunrise and before sunset’ . I accept that the Qur’an needs to be interpreted, but for the applicant not to even know (or have them made known to him) the existence of these verses (and therefore be required to intellectually engage with them) gives me no confidence that his claimed belief to favour the Qur’an to the exclusion of the Sunnah is genuine.
Whilst I accept that the applicant may not have had formal religious education, he claimed that he got into arguments about the Qur’an and Sunnah and his belief in their relative worth with his friends and family in Egypt in 2015 and 2016, and with sheikhs in Egypt (with whom he had intense conversations) and in Australia. It is reasonable to believe that during these discussions particular passages of the Qur’an would have been talked about, including those regarding the requirement for prayer and their times.
It lacks credibility that the applicant could have had this many discussions with this many people and be unaware that there were alternate views to his (including regarding prayer) and that there was evidence in the Qur’an that he would have been pointed to. Whether he agreed with the interpretation of these verses or not is another thing – but not to know of their existence given the frequency of his discussions on the subject, including with qualified people, lacks credibility.
I also do not accept that the applicant was influenced by an Egyptian friend in Sydney named [Mr A] who explained things to him about the Qur’an that he didn’t previously know. Not only is it strange that he would accept the advice of a Christian about Qur’anic exegesis rather than sheikhs in Egypt or Sydney, this exchange also relies entirely on his uncorroborated claim and I place little weight on the applicant’s credibility as a witness. No supporting statement from [Mr A] was provided, nor did the applicant seek to have [Mr A] called as a witness, which would have allowed the Tribunal to question him and weigh up his testimony.
The applicant was also given the opportunity to provide the Qur’anic verse that he claimed directed him to pray only three times and the opportunity to address the specific verses the Tribunal put to him that called into question this specific direction, yet he failed to provide any response despite being given time to do so.
His willingness not to follow the Qur’an’s direction to attend Friday congregational prayers and to ‘leave off your business’[2] given his focus on the truth of the Qur’an raises further questions in my mind, however I am willing to accept that he is unable to do so because he is required for work.
[2] Qur’an, Surah 62 (The Congregation), ayat 9.
I draw no adverse inference from his lack of a social media profile regarding his belief in the Qur’an and rejection of the Sunnah. While I found his claim not to be familiar with the internet given the number of courses he had enrolled in and studied in Australia not to be credible, at the same time there is no expectation that he have a social media footprint discussing these issues publicly.
Because I do not accept that the applicant believes in the Qur’an only and not the Sunnah, it follows that he never got into arguments with his family, friends or sheikhs in Egypt or Australia regarding related ideological issues, that he was called and considered an infidel and that the last time he left Egypt members of his family threatened to kill him if he ever returned. I also do not accept that he does not include Muhammad as the Messenger of God when he recites the shahada – this again relies solely on his uncorroborated oral testimony which I have found lacks credibility.
My finding that he is not considered an infidel or that there is a real chance that he is at risk of serious harm from him or anybody else in Egypt if he is to return is strengthened by the oral evidence he presented at a previously constituted Tribunal. In the same month he returned to Australia (February 2016) he attended a MRT hearing regarding his cancelled student visa and in advocating his case he informed the member at that Tribunal that he wanted the Australian qualification because it would help him gain employment when he returned to Egypt, and that his brother who owned a large store with lots of employees had offered him a job running their marketing or as the personnel manager.
Not only was this inconsistent with his claim to the current Tribunal that his brothers had told him not to return lest he be killed by them, it is also inconsistent with the fact that the only brother he claimed to the present Tribunal who ran a shop was a sole trader who may on occasion get someone to help him out. This is a far cry from a store requiring a personnel or marketing manager, and simply another example of the applicant’s lack of credibility as a witness.
Although not determinative in its own right, the timing of his protection visa application is also not indicative of someone fearing serious harm. He claimed that he expressed his religious opinion in Egypt and got into arguments while he was there in 2014, but that he became scared and had been threatened with death for his religious opinion after his 2015 trip. Yet he did not apply for protection until nearly three months after he returned to Australia, and only two weeks after the Ministerial Intervention request (following the affirmation of his student visa refusal) had not been forwarded to the Minister.
At the time he returned from Egypt [in] February 2016 when he alleges family members had threatened him with death if he returned – at that stage he was only on a bridging visa without a guarantee of this being extended, let alone gaining a longer-term visa. Given this, his delay in applying for protection as soon as he arrived back in Australia given the nature of the threat that he claimed had been made against him, raises significant questions in the mind of the Tribunal as to the truthfulness of the alleged threat.
Given his apparent lack of knowledge regarding the Qur’an’s prayer-related verses, and inability to provide information relevant to the Tribunal’s concerns in this regard post-hearing, his inconsistent evidence given to two Tribunals regarding his willingness to return to Egypt and his brother’s employment, and the suspicious timing of his protection application, I am satisfied that the applicant has fabricated his claim to have a religious opinion that disregards the Sunnah in favour of the Qur’an and that there is not a real chance that he is or would be perceived to be a non-Sunni or infidel, that he would face serious harm from his siblings or anyone else, that his wife and daughter would be taken from him or that his family will report him to the police or the army when he returns to Egypt.
FGM
Although the applicant’s daughter was never included on his protection visa application and she remains in Egypt and therefore unable to apply to apply for protection, I note that the applicant claimed that if he wasn’t granted protection then his daughter would remain in Egypt and be subject to Female Genital Mutilation (FGM). I note that the applicant never raised any claim that he would be harmed because of alleged moves to subject his daughter to FGM, and that his daughter is not an applicant in this claim, I will address this claim as it relates to the chances of the applicant suffering persecution for completeness’ sake.
I do not accept that the applicant’s daughter will be subject to FGM. To begin with, the claim rests entirely on his oral evidence which I have found lacks credibility, and he has demonstrated a willingness to fabricate claims regarding his family’s willingness to harm him in order to secure a protection visa. Further to that, I also note that he never mentioned this claim in his original protection visa application. I further note that in his DIBP interview he described his father-in-law as liberal and democratic with his children. Given this, it is reasonable to believe that he would support the applicant’s wife’s desire not to subject her daughter to FGM. I do not accept that the applicant meant that his father-in-law was simply good to his children inside the house but religiously strict outside it. This seems inconsistent with the words he used to describe the father-in-law’s actions.
Because I do not accept that the applicant’s daughter would be subject to FGM and the applicant has not claimed that he would be harmed even if she was subject to it, I do not accept that there is a real chance the applicant will be harmed because his daughter will be subject to FGM.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is or ever was someone who rejected the Sunnah and only followed the Qur’an, that his wife and daughter would be taken from him because of this, that he engaged in discussions with family, friends and sheikhs about it or was threatened by his family with death or being reported to the police or army because of it, or that his daughter will be subject to FGM in Egypt, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

[2021] AATA 4411

17 September 2021

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Immigration

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