1814447 (Refugee) - [2020] AATA 909

1814447 (Refugee) [2020] AATA 909 (16 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814447
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Shahyar Roushan
DATE:16 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 16 January 2020 at 11:30am
CATCHWORDS
REFUGEE – protection visa – Egypt – Federal Circuit Court remittal – religion – Coptic Christianity – membership of particular social group – business owner – relatives killed in separate incidents – various attacks and threats to family members and friends – mental health and treatment – country information – status of Coptic Christians and women – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (b)(i), 65, 91R(1)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143
VBAO v MIMIA (2006) 233 CLR 1
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 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
[The first named applicant] is a [age]-year-old Coptic Christian. She is a national of Egypt. [The applicant] arrived in Australia [in] September 2012 with her children, [the second, third and fourth named applicants]. [The fifth named applicant] arrived separately on a visitor visa [in] October 2012. All applicants applied for protection visas on 5 December 2012. On 12 December 2013, a delegate of the Minister refused their protection visa applications.
The applicants applied for a review of the delegate’s decision. On 4 November 2015, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision not to grant the applicants protection visas. In essence, the first Tribunal did not consider the applicants’ claims to be credible and rejected their claims for protection.
The applicants appealed the decision to the Federal Circuit Court of Australia. [In] April 2018, the Court ordered that the first Tribunal’s decision be quashed, and the application be remitted back to the Tribunal to be determined according to law. The matter is now before the currently constituted Tribunal (the Tribunal) for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa applications
According to the applications, [the applicant] was born in [Egypt]. She resided at a single address in Alexandria before coming to Australia. Her mother and father reside in…

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 1814447 (Refugee)

Details

AGLC: 1814447 (Refugee) [2020] AATA 909
Case: [2020] AATA 909
Decision Date: 16 January 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse protection visas to a family of Egyptian nationals. The first applicant, a Coptic Christian woman, alleged she and her family had faced threats and violence due to their religious affiliation and her deceased husband's business dealings, which involved constructing churches. Her first husband and son were killed in a targeted attack, and her second husband had also been threatened. The applicants had previously had their protection visa applications affirmed by the Tribunal, but this decision was quashed by the Federal Circuit Court, which remitted the matter for redetermination.

The primary legal issues before the Tribunal were whether the first applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958*, and whether the other applicants, as members of her family unit, also met the relevant criteria under section 36(2)(b)(i). This required the Tribunal to assess the credibility of the first applicant's claims regarding persecution and the risk of harm she faced in Egypt due to her Coptic Christian faith and her family's history.

The Tribunal considered the evidence presented, including country information regarding the status of Coptic Christians and women in Egypt, and the specific claims made by the first applicant concerning attacks and threats against her family members and friends. The Tribunal was satisfied that the first applicant met the criteria under section 36(2)(a) of the *Migration Act*. Consequently, the Tribunal was also satisfied that the other applicants met the criteria under section 36(2)(b)(i) by virtue of being members of the same family unit as the first applicant.

The Tribunal remitted the matter for reconsideration with directions that the first named applicant satisfies section 36(2)(a) of the *Migration Act*, and that the other applicants satisfy section 36(2)(b)(i) on the basis of their membership in the same family unit as the first named applicant.

Orders

Orders of the court

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Background

Background to the litigation

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).Background [The first named applicant] is a [age]-year-old Coptic Christian. She is a national of Egypt. [The applicant] arrived in Australia [in] September 2012 with her children, [the second, third and fourth named applicants]. [The fifth named applicant] arrived separately on a visitor visa [in] October 2012. All applicants applied for protection visas on 5 December 2012. On 12 December 2013, a delegate of the Minister refused their protection visa applications. The applicants applied for a review of the delegate’s decision. On 4 November 2015, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision not to grant the applicants protection visas. In essence, the first Tribunal did not consider the applicants’ claims to be credible and rejected their claims for protection. The applicants appealed the decision to the Federal Circuit Court of Australia. [In] April 2018, the Court ordered that the first Tribunal’s decision be quashed, and the application be remitted back to the Tribunal to be determined according to law. The matter is now before the currently constituted Tribunal (the Tribunal) for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the DepartmentProtection visa applications According to the applications, [the applicant] was born in [Egypt]. She resided at a single address in Alexandria before coming to Australia. Her mother and father reside in Cairo. She has [a number of] [siblings], who reside at various locations in Egypt. [One sibling] is deceased. [The applicant] has been married twice. She married Mr [A] in 1980 and, following his untimely death, she married her second husband, Mr [B], in August 2000. [The applicant] had seven children from her first marriage, including [the fourth applicant] and [the fifth applicant]. Of the remaining five children, Mr [C] is an Australian citizen and resides in Australia; Mr [D] lives in Cairo, Ms [E] resides in [Country 1] and Ms [F] resides in [Country 2]. [The applicant]’s son, [Mr G], died [in] May 1999. [The applicant] also has two children from her second marriage, [the second applicant] and [the third applicant]. In a statement provided in support of her application for a protection visa, [the applicant] made the following claims. She is a Coptic Christian from Alexandria, Egypt. She married her first husband in 1980. [Mr A] was an [Occupation 1] who operated [a] company. As part of the business, he was involved in the construction of churches and monasteries. He also helped young males and females back to the church. He received threats from Islamic groups after construction of a church was approved on a plot of land facing the building he and his family owned and resided in. [In] May 1999, [the applicant], her husband and four children were returning from a religious outing when a car crashed into their bus. Three garbed men emerged from the car. They attacked and killed [the applicant]’s husband and their son, [Mr G]. The perpetrators were not identified or apprehended.

Evidence

Evidence Before The Court

The applicants appealed the decision to the Federal Circuit Court of Australia. [In] April 2018, the Court ordered that the first Tribunal’s decision be quashed, and the application be remitted back to the Tribunal to be determined according to law. The matter is now before the currently constituted Tribunal (the Tribunal) for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the DepartmentProtection visa applications According to the applications, [the applicant] was born in [Egypt]. She resided at a single address in Alexandria before coming to Australia. Her mother and father reside in Cairo. She has [a number of] [siblings], who reside at various locations in Egypt. [One sibling] is deceased. [The applicant] has been married twice. She married Mr [A] in 1980 and, following his untimely death, she married her second husband, Mr [B], in August 2000. [The applicant] had seven children from her first marriage, including [the fourth applicant] and [the fifth applicant]. Of the remaining five children, Mr [C] is an Australian citizen and resides in Australia; Mr [D] lives in Cairo, Ms [E] resides in [Country 1] and Ms [F] resides in [Country 2]. [The applicant]’s son, [Mr G], died [in] May 1999. [The applicant] also has two children from her second marriage, [the second applicant] and [the third applicant]. In a statement provided in support of her application for a protection visa, [the applicant] made the following claims. She is a Coptic Christian from Alexandria, Egypt. She married her first husband in 1980. [Mr A] was an [Occupation 1] who operated [a] company. As part of the business, he was involved in the construction of churches and monasteries. He also helped young males and females back to the church. He received threats from Islamic groups after construction of a church was approved on a plot of land facing the building he and his family owned and resided in. [In] May 1999, [the applicant], her husband and four children were returning from a religious outing when a car crashed into their bus. Three garbed men emerged from the car. They attacked and killed [the applicant]’s husband and their son, [Mr G]. The perpetrators were not identified or apprehended. [Mr A]’s brother, Mr [H], also owned shares and worked for [Mr A]’s company. He was also involved in looking after his brother’s children. [In] February 2000, [the applicant]’s brother-in-law was attacked and subsequently died. [The applicant] was encouraged by the church to remarry. [In] September 2001, she married [Mr B], a Coptic Christian. [Mr B] was threatened by the ‘assassins’ to become a member of their group in exchange for taking [the applicant]’s money and properties. He was afraid of getting killed, so he escaped and vanished. [The applicant] would only see him every now and then in remote places, or in the churches and monasteries. In 2007, there was a fight between a Muslim man, [Mr I], who rented a shop in [the applicant]’s building, and the janitor of the building, ‘under the pretext’ of a rent dispute. Mr [I], his son, and a group of ‘garbed hoodlums’ smashed all the Coptic shops in the building, including the office of the construction company. The janitor was also injured. A number of Muslims and Christians intervened, putting an end to the incident. A reconciliation report ordered Mr [I] and his son to pay for the damage and the cost of treatment in the hospital. The same killers are still at large without punishment.

Decision

Reasons for decision

The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Shahyar RoushanSenior Member

Ratio Decidendi

Legal Principle Established

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