1814454 (Refugee) - [2022] AATA 707

1814454 (Refugee) [2022] AATA 707 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814454
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:8 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2022 at 10:03am
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Christian woman kidnapped by Muslim man and forced to change religion and marry him – drugged and beaten, and miscarriages – escape, divorce and threats – fear of harm from ex-husband and Muslim group – credibility – inconsistent claims and evidence – records indicate voluntary conversion – extensive travel to multiple countries without applying for protection, and voluntary returns – delay in leaving after receiving Australian visa – late claims of workplace discrimination and that sister was targeted because of her – adverse inference – recent marriage to Australian citizen – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 424AA, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASE
R v NK [2016] NSWSC 498
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 dependants.
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 1 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 22 January 2018.
The applicant appeared before the Tribunal on 21 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review.
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 (Cth) (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…

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 1814454 (Refugee)

Details

AGLC: 1814454 (Refugee) [2022] AATA 707
Case: [2022] AATA 707
Decision Date: 8 February 2022

CaseChat Overview and Summary

The applicant sought a protection visa, claiming to fear harm upon return to Egypt. Her claims included being kidnapped, forced to convert to Islam, subjected to domestic violence, and suffering miscarriages at the hands of her ex-husband. She also alleged ongoing threats from her ex-husband and the Muslim Brotherhood due to her return to Christianity. The Administrative Appeals Tribunal (AAT) reviewed the decision to refuse the visa.

The primary legal issues before the AAT were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee with a well-founded fear of persecution, or under section 36(2)(aa), as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal. This involved assessing the applicant's credibility, the consistency of her claims, and the availability of effective protection in Egypt.

The Tribunal considered the applicant's claims in light of country information and relevant guidelines. It noted inconsistencies in her statements and evidence, including records suggesting voluntary conversion and extensive travel without seeking protection. The Tribunal also took into account the applicant's delay in leaving Egypt after receiving an Australian visa and her recent marriage. Ultimately, the Tribunal found that the applicant did not satisfy the criteria for a protection visa, either as a refugee or under the complementary protection provisions.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CLAIMS AND EVIDENCEProtection visa application The applicant made the following statement of claims as part of her protection visa application:a.Why did you leave Egypt ?: I was kidnapped and raped by a Muslim man in Egypt in January 2007 named [Mr C], who forced me to change my religion from Christian to Muslim and marry him as he was threatening me that he will kill me and my family if I did not listen to him. He took me to [Location] and forced me to change my religion. He was beating me and I had to make two surgeries of miscarriage where I was about to die during. I managed to escape from him after three years and went to church and they helped me to become Christian again;b.What do you think will happen to you if you return to Egypt ? I am threatened to be killed by him and the Muslim Brotherhood because I managed to come back to my original religion which is Christianity. I tried to change my home address and my job more than one time during the past years but they managed to reach me and send me threaten messages through different messengers;c.Did you experience harm in Egypt ? My ex-husband was beating and hitting me daily and threatening me that he will kill me and my family if I did not listen to him. I had to do many surgeries and I was not allowed to work or to go out of the house without him. He forced me to make Muslim prayers and when I refused he hit me badly;d.Did you seek help in Egypt ? Because he did not give me the chance and Egypt is a Muslim country, a lot of Christian people are being killed and nobody in the government doing or helping Christians. Most of police officers are Muslims and were my ex-husband’s friends and helped him in what happened to me; ande.Did you move to another part of the country ? I changed my home address and my work address more than one time to escape from the threatening but unfortunately he knew my new address and started to threaten me again. The applicant provided a four-page statutory declaration on 5 April 2019 that essentially claimed to fear serious harm because of the following reasons:a.Actual/perceived faith as a Coptic Christian; andb.Membership of a particular social group (PSG), comprising:i.Divorced single women in Egypt;ii.Women in Egypt who are victims of domestic violence; and/or iii.Such other PSG as the Department considers applies. She also provided another statement on 20 December 2021 that updated some details such as her becoming engaged with a marriage date of 15 January 2022. She claimed her partner had no right to enter Egypt and she would return alone. She also claimed that returning as a married woman would see her at greater risk because her ex-husband would be even more angered were he to find out she had re-married.AAT Hearing

Decision

Reasons for decision

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 ShanahanMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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.CLAIMS AND EVIDENCEProtection visa application The applicant made the following statement of claims as part of her protection visa application:a.Why did you leave Egypt ?: I was kidnapped and raped by a Muslim man in Egypt in January 2007 named [Mr C], who forced me to change my religion from Christian to Muslim and marry him as he was threatening me that he will kill me and my family if I did not listen to him. He took me to [Location] and forced me to change my religion. He was beating me and I had to make two surgeries of miscarriage where I was about to die during. I managed to escape from him after three years and went to church and they helped me to become Christian again;b.What do you think will happen to you if you return to Egypt ? I am threatened to be killed by him and the Muslim Brotherhood because I managed to come back to my original religion which is Christianity. I tried to change my home address and my job more than one time during the past years but they managed to reach me and send me threaten messages through different messengers;c.Did you experience harm in Egypt ? My ex-husband was beating and hitting me daily and threatening me that he will kill me and my family if I did not listen to him. I had to do many surgeries and I was not allowed to work or to go out of the house without him. He forced me to make Muslim prayers and when I refused he hit me badly;d.Did you seek help in Egypt ? Because he did not give me the chance and Egypt is a Muslim country, a lot of Christian people are being killed and nobody in the government doing or helping Christians. Most of police officers are Muslims and were my ex-husband’s friends and helped him in what happened to me; ande.Did you move to another part of the country ? I changed my home address and my work address more than one time to escape from the threatening but unfortunately he knew my new address and started to threaten me again.