1824869 (Refugee) - [2019] AATA 6780

1824869 (Refugee) [2019] AATA 6780 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824869
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Christopher Smolicz
DATE:9 October 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 October 2019 at 11:59am
CATCHWORDS
REFUGEE – protection visa – Egypt – Federal Circuit remittal – Religion – Coptic Christian – inter-faith relationship with Muslim women – received menacing calls – almost run over – Al-Nour party threats – relationship has since ended – no political profile – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIAC v SZQRB [2013] FCAFC 33
MZAFZ v MIBP [2016] FCA 1081
SZTYV v MIBP [2018] FCA 1076
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 on 19 April 2016 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 6 March 2015.
The applicant applied to this Tribunal to review the delegate’s decision.
On 17 November 2017 a differently constituted Tribunal (the first Tribunal) affirmed the Department’s decision not to grant the applicant a protection visa.[1]
[1] AAT case file ref. 1606642
The applicant sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA).
On 8 August 2018 the FCCA quashed the first Tribunal’s decision because the first Tribunal failed to disclose to the applicant certificates issued pursuant to s.438 of the Act. The matter is now before the Tribunal pursuant to an order of the Court.
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…

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 1824869 (Refugee)

Details

AGLC: 1824869 (Refugee) [2019] AATA 6780
Case: [2019] AATA 6780
Decision Date: 9 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a Coptic Christian from Egypt, claimed to have faced persecution due to his religion and an inter-faith relationship with a Muslim woman. The Tribunal also addressed allegations made against the applicant, which it ultimately discounted due to vagueness and lack of supporting evidence.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, either under the refugee convention or Australia's complementary protection obligations. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of religion, or if there were substantial grounds for believing that removal from Australia would expose him to a real risk of significant harm. The Tribunal also had to consider the validity of certain public interest certificates issued under section 438 of the Migration Act 1958, which restricted the disclosure of information.

The Tribunal reasoned that while the applicant had described difficulties faced by Coptic Christians in Egypt and recounted specific incidents, including threats related to his past relationship, these did not establish a well-founded fear of persecution for himself. The Tribunal found that the threats were linked to a relationship that had since ended and that the applicant had not demonstrated a real risk of significant harm upon return to Egypt. Furthermore, the Tribunal found that some of the section 438 certificates were invalid because they failed to specify a sufficient public interest reason for non-disclosure, citing precedent from *MZAFZ v MIBP*.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that the applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958.

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

The Tribunal notes that the ‘dob-in’ allegations are vague and not supported by a signed statement or supporting evidence. The Tribunal is also aware that allegations can be made for personal reasons. The Tribunal has considered all of the dob-in information and in the circumstances has decided to exercise caution and not to place any weight on the information. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because he is a Coptic Christian who was in a relationship with a Muslim woman in Egypt. The Tribunal conducted a hearing on 2 July 2019. The hearing was adjourned because the applicant had raised his concerns about the suitability of the interpreter who the applicant claims was from the Muslim faith. Following the hearing the Tribunal wrote to the applicant setting out the Tribunal’s policy and relevant authorities for the selection of interpreters by the Tribunal. The applicant was sent out a second hearing invitation where he was given an opportunity to advise the Tribunal if there are any issues that may affect his ability to take part in the hearing. The applicant’s migration agent did not respond or raise any issues with the Tribunal that may impact on the applicant’s ability to give evidence at the hearing. The applicant attended the second hearing on 31 July 2019 and confirmed that he had no problems or issues proceeding with the nominated interpreter at the second hearing. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Summary of substantive claims The applicant provided the following information in support of his application for protection. He is a Coptic Christian living in a country where the majority of the population are Muslims. He has faced many difficulties in Egypt because of his religion. As a young child growing up in Egypt he experienced persecution because of his religion. For example people would swear at him, he was abused at school and university and faced discrimination in finding work. He claims that in the past 30 years Catholic churches have been burnt, and Catholic girls kidnapped, raped and forced to convert to Islam. The Egyptian government is weak and unable to deal with radical Muslims. On 6 January 2010 (Coptic Christmas Eve) Muslims killed six Christians when they were leaving church. He lost a friend during the 2011 New Year’s Eve bomb explosion. He completed a [course] and in July 2010 commenced work [in another occupation] at [Business 1]. After three years he was promoted to [a position]. In 2012 he met a Muslim girl called [Ms A] who was also working at [Business 1] and they fell in love. Inter-religious relationships are uncommon and socially stigmatised in Egypt so they kept the relationship secret for over two years. [Colleague 1] at work found out about the relationship. In the following weeks he received threatening phone calls from unknown people about his relationship. He was told he would be punished if he continued with the relationship.

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 criteria in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Christopher SmoliczMemberATTACHMENT - 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.…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 them 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… (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 s.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 policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.Material under a public interest non-disclosure certificate The Minister for Immigration (or delegate) may place restrictions on material given to the Tribunal by the Department. Section 438 permits the Minister to certify in writing that the disclosure of information is contrary to the public interest or notify the Tribunal that it was given in confidence to the Department. The Tribunal notes that the following certificates issued by a delegate of the Minister under s.438 of the Act are located on the Department’s file ([source deleted]):·Certificate dated 19 April 2016 issued under s.438(1)(a)·Certificate dated 19 April 2016 issued under s.438(1)(b)·Certificate dated 13 May 2016 issued under s.438(1)(a)·Certificate dated 14 May 2019 issued under s.438(1)(a) The Tribunal has considered the certificates and the reasons why they were issued in respect of the specified folios. The Tribunal provided the applicant with copies of the certificates and gave him an opportunity to comment on their validity. For the following reasons the Tribunal has formed the view that the certificates dated 19 April 2016 and 13 May 2016 issued under s.438(1)(a) are not valid. The certificates state that ‘disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs’. The Tribunal is of the view the certificates are invalid, as no public interest reason has been properly specified on the certificates. Indeed in MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) it was held that a s.438 certificate which had been placed on documents on the basis that they contained ‘internal working documents’ was invalid, as this is not a sufficient basis for public interest immunity either at common law or under statute.