1815583 (Refugee) - [2022] AATA 1347

1815583 (Refugee) [2022] AATA 1347 (24 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1815583

COUNTRY OF REFERENCE: Egypt
MEMBER:Nicole Burns
DATE:24 March 2022
PLACE OF DECISION: Melbourne
DECISIONS: The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s 36(2)(a) of the Migration Act.
The Tribunal affirms the decision not to grant the second named applicant a Protection visa.

Statement made on 24 March 2022 at 1:52pm

CATCHWORDS
REFUGEE – protection visa – Egypt – Federal Court remittal – religion – particular social group – Coptic Christian woman – attacks by Muslim extremists – employment – encouraging conversions to Christianity – physical and sexual assault – death threats – anti-Christian violence – gender-based violence – fragile mental and physical health – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497
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 Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a married couple from Egypt who last arrived in Australia holding visitor visas [in] April 2013, and applied for the Protection visas on 18 June 2013. The delegate refused to grant the visas on 13 June 2014. They sought a review of that decision with a differently constituted Tribunal who affirmed the delegate’s decision on 21 January 2016.[1] The applicants appealed the first Tribunal’s decision. The application was dismissed by the Federal Circuit Court of Australia (FCCA) [in] August 2017. Subsequently ([in] May 2018) the appeal was allowed by the Federal Court of Australia (FCA), and the case remitted to the present Tribunal for reconsideration.
[1] AAT No. 1411780
The nationality of the applicants is not in dispute. They arrived in Australia holding Egyptian passports and claim to be Egyptian nationals. The Tribunal accepts they are Egyptian nationals and finds that Egypt is their country of nationality for the purposes of assessing their protection claims.
The first named applicant (hereafter the applicant) appeared before the Tribunal on 21 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B], who are friends of her son, [Son A], based in Melbourne, via the telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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 1815583 (Refugee)

Details

AGLC: 1815583 (Refugee) [2022] AATA 1347
Case: [2022] AATA 1347
Decision Date: 24 March 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Coptic Christian woman from Egypt. The applicant claimed she feared persecution due to a personal dispute with a former colleague, being blamed for converting a client to Christianity, and her identity as a Coptic Christian woman in Egypt. She alleged she had faced discrimination in the workplace, received threats to convert to Islam, and had been subjected to physical and sexual assault, as well as death threats, by Muslim extremists. The applicant also contended that she would not receive protection from Egyptian state agencies. The Federal Court remitted the decision for reconsideration by the Tribunal.

The Tribunal was required to determine whether the applicant had established that she would, if returned to Egypt, engage Australia's non-refoulement obligations under the Migration Act 1958 (Cth). This involved assessing whether she had a well-founded fear of persecution based on her membership of a particular social group, specifically Coptic Christian women in Egypt, and whether she would be unable to obtain protection from the Egyptian authorities. The Tribunal also considered the relevance of gender-based violence and the applicant's fragile mental and physical health in its assessment.

In its reasoning, the Tribunal took account of Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments from DFAT. It accepted the applicant was a Coptic Christian woman and noted her membership in a Melbourne congregation. The Tribunal considered the applicant's husband's statutory declaration detailing alleged incidents of discrimination, threats, physical and sexual assault, and destruction of property, as well as the police's alleged refusal to take statements due to fear of Muslim reaction. The Tribunal also noted the applicant's claims of being followed and receiving phone calls demanding conversion, and specific instances of assault where her cross necklace was targeted and she was verbally abused. The Tribunal acknowledged the applicant's stated fear that these threats would be carried out if she returned to Egypt.

Orders

Orders of the court

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Background

Background to the litigation

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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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEClaims and evidence The applicant is [an age]-year-old married Coptic Christian woman from Cairo, Egypt who seeks to invoke Australia’s protection obligations for several reasons. These include due to a personal dispute with a former (Muslim) colleague; being blamed for converting one of her [clients] from Islam to Christianity; as a Coptic Christian; and as a Coptic Christian woman in Egypt. The Tribunal accepts the applicant is a Coptic Christian woman. Her marriage certificate – a copy of which was provided to the Department – shows she married her husband in a Coptic orthodox church in Cairo [in] September 1979. She has also provided to the Tribunal a letter dated [in] December 2021 from [Leader A], Coptic Orthodox [Church in Melbourne], who confirmed her membership of their congregation at [Church 1 in] Melbourne. The applicant and her husband came to Australia holding visitor visas [in] April 2013 where their son ([Son A]) lived at the time. As noted her husband returned to Egypt in March 2017, purportedly because his mother was unwell (she died [in] March 2020). At hearing the applicant said [Son A] returned to Egypt in early 2020 and has become stuck there due to COVID-19-related travel restrictions. He plans to return to Australia in early 2022. The applicant’s other son, [named], resides in Cairo along with his wife. In Australia the applicant said she currently lives alone in [Son A’s] (rented) house and works five days a week as [an occupation 1]. The applicant’s initial claims before the Department were set out in a statutory declaration from her husband dated 13 June 2013, who states that he made the statement in support of the Protection visa application on behalf of himself and his wife (the applicant). In it the applicant’s husband states in summary that:·They fear being persecuted by the Muslim Brotherhood as Coptic Christians in Egypt. As Coptic Christians they suffered ongoing discrimination in their workplace and generally in Egypt. His wife did not receive well deserving promotions that went to Muslim employees. ·The situation has worsened since the end of the Revolution for Christians, who are exposed to rape, kidnapping and murder on a daily basis. ·He and his wife have received many threats to convert to Islam, at their workplace, in areas such as shops, and over the phone. They were so stressed they sought psychiatric help.·All government agencies are run by Muslims and there is no protection for Christians in Egypt. On several occasions he and his wife tried to make a statement to the police about the threats they received but they were not taken seriously.·In around October 2012 they witnessed demonstrations in front of the Presidential Palace in Cairo, [and] there were arguments between Muslim extremists supporting the Muslim Brotherhood and Coptic Christians. Some people in the crowd became aggressive towards them when they noticed a cross necklace on his wife’s neck and told them they would not live in peace unless they convert to Islam.·After this incident they noticed people following them. They also received phone calls from people demanding that they convert to Islam. They tried to report the matter to the police but they refused to take their statement as they were Christian and the police were afraid of the ‘Muslim reaction’.·One day when his wife was walking down a street a man pulled up her dress and tried to undress her: he remarked that as a Christian woman she deserved it. She managed to escape. This happened twice: in January 2013 and March 2013. His wife sought help from her psychiatrist (who she had seen since March 2012).·One day in December 2012 – [specified] – the applicant’s husband awoke to find several Christians had been murdered outside their home and on their street. His car had been destroyed, as were others on his street: the ones with crosses hanging from rear-view mirrors. Again the police would not let them make a report due to the Muslim reaction.·[In] April 2013 his wife was assaulted by two men on motorcycles whilst walking home from Tahrir square, ripping her cross necklace, her clothing and grabbing her breast. They were Muslims with long beards, and said ‘let the cross help you infidels’. His wife made a statement at [Police Station 1] that same day: however, the police officer did not report that she was assaulted.·His wife has received many threats from Islamic extremists that they will hunt us down, rape and kill her (and then him). They fear if they return to Egypt they will follow through with their threats.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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