1829322 (Refugee)

1829322 (Refugee) [2022] AATA 1339 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829322
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:21 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2022 at 2:21pm
CATCHWORDS
REFUGEE – Protection visa – Egypt – political opinion – member of Muslim Brotherhood (MB) – anti-government opinion –delay in lodging the visa application – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AAA, 499
Migration Regulations 1994, Schedule 2

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 25 September 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 9 June 2016.
The applicant appeared before the Tribunal on 23 February 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 and English languages.
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 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following statement as part of his protection visa application:
In my late teen some of my brothers and I became involved with various non-official groups that were concerned with the political situation in Egypt including government corruption. During the Mubarak years these groups were linked with Muslim Brotherhood (MB) in that many of our aims and views were similar. I became well-known in the area and worked with the office of [the] MB candidate in my area. The Mubarak government was against the MB and any person that appeared a threat to their rule.
In the year prior to Mubarak’s fall I was detained by authorities on 4 occasions and then released after intense questioning and on one occasion had been beaten. I was also one of many arrested and detained during the 2011 revolution. During the Morsi rule I was able to freely attend meetings but there was still a lot of opposition to my activity from various community members and some of the authorities. During the 2013 Coup I was arrested and detained for a week due to my involvement in organizing buses to transport people to demonstrations.
Since this time I have-been arbitrarily arrested and detained on many occasions. My home and family home have been raided. On one occasion my sister was treated very badly. In August 2015 I was taken by security police and handed over to plain clothed people who I think were police or security. I was detained in a flat in an unknown location. There were other people in this flat in the same position as my self but I never saw them. I could only hear some talking and screaming when we were each abused.
After I was release I knew that at least 7 others from my area experienced the same during this time. I was again detained for another day 3 weeks before I departed Egypt. I had been threatened with imprisonment if I did not cooperate with authorities and provide them information. Interrogations were becoming very intense so I had to escape from Egypt.
Additionally, he claimed that he would be imprisoned permanently and forced to give authorities information about other people.
AAT Hearing
The applicant said that he was married in Egypt and had a child there. His brother is in Australia and is currently here for medical treatment. Asked if his brother came here for that purpose, he claimed that he came as a student a long time ago but then had problems and he was now seeking treatment. His brother had no visa so couldn’t work so the applicant was supporting him. Asked about his brother’s visa situation, he claimed that his brother had applied for a refugee visa but it had been rejected. Asked why his protection visa was refused, he claimed that he didn’t know why. He had no details on it. They lived together.
Asked on what basis his brother claimed refugee status, he claimed that his brother was a member of the MB. Asked whether the Australian government accepted his brother was a MB member, he said that he didn’t know it was rejected. It was put to him that they both claimed to be in the MB, they live together and his brother’s refugee visa was rejected. It was put to him that it was hard to believe they didn’t discuss his refusal. He claimed that his brother applied for the protection visa before he arrived (but was refused after he arrived). He had so many other worries so they didn’t talk about this issue – they only talked in general and if his brother brought it up he didn’t really listen because of his own problems.
The applicant claimed that if he returned to Egypt, the government would put him in prison. He was a MB member and criticised the government. He would be considered a terrorist. He had been imprisoned in Egypt and they had threatened to kill him. Asked if he had any other claims, he said that this was his only claim. He joined the MB in high school. He liked their ideology and the way they treated other people. They were respectful. He joined between 2005-2007.
Asked how he joined and whether they approached him or he approached them, he claimed that they go around and pick people and tell them how their system works. They came to him and he liked what they said. Asked if they came to him around 2005, he said around this time – when he was in high school. Asked if he had to do any training with them, he said there was no training. They just speak to a person, then when they decide to accept them they introduce them to other people and tell them what their role would be. Asked how long it took him to be a member, he said it didn’t take long as they liked the way he thought.
Asked what it was about their ideology that he liked and what they taught him about their ideology, he claimed that they taught him that they respect everyone and want to improve the country by improving service to all. They have to help and respect everyone which was what their religion was about – he was asked and agreed that this was a common feature of other religions also.
Asked what the MB views were regarding the roles of religion and politics, including what Hassan El-Banna thought of religion and politics. He said that Banna thought that religion and politics couldn’t be separated because Egypt was a Muslim country. Asked what this meant practically, he claimed that he wanted to bring people together because of the war that happened in Egypt. Asked to be more specific given most people wanted to ‘bring people together’, he said he wanted to unite all Muslims together. There were so many groups with different ideologies.
Asked what Banna thought the political system should be, he claimed that he wanted Egypt to be under Islamic rule but for it to be fair to everyone. Asked how it could be fair to the Copts if it was Islamic rule and whether there could be a Christian president, he said there were a majority of Muslims in the country and Islam was about being fair to everyone. Asked if the MB agreed that a Copt could be president of Egypt, he said that he was a MB member and was in a Christian country. Asked to answer the question asked of him, he said that only if the majority were Christians. Asked how it could be fair and equal if a Christian wasn’t allowed to be president based on their religion, he claimed that he was just saying that 80 per cent were Muslims but everyone lived in harmony. It was put to him that this wasn’t what he was asked – he was asked how all could be fair and equal according to the MB if they wouldn’t allow a Christian to be president. He repeated that it was a Muslim country but that everyone should be treated equally and not according to their wealth.
He was asked if he was able to divorce his wife verbally. He said one could but it wasn’t legal. It was put to him that he could divorce her verbally but it wasn’t official until it was registered. He agreed. Asked if his wife could verbally divorce him, he said she couldn’t. he was asked how MB could want everyone to be equal yet the divorce laws didn’t treat both sexes equally, he claimed there were different rulings. A woman could seek divorce on her own. It was put to him that this was a khula divorce , wasn’t verbal and she had to give up financial rights. He had spoken of the MB wanting equality and fairness yet the Christians and women may not believe that this construct was equal. He said the MB principles weren’t applied as they were only in power between 2012-2013 – this was why things weren’t fair and equal.
He was asked if he had any evidence such as photos that he had attended any MB functions in Egypt that would support his claim, and he said he didn’t bring anything with him from Egypt. Asked if he had ever come to the attention of the Egyptian authorities and he was asked why they would think he was in the MB. He said he was always there, at the January protests, at Rab’ah. Asked if he had ever come to the authorities’ attention as a result, he said he was taken to prison a couple of times. These were after Rab’ah. In all he was detained three or four times. And perhaps once or twice before Rab’ah (which was July-August 2013).
Asked if he voted in the internal MB elections for their representatives and the like, he said that when people passed away someone else usually took their place. He only voted in one election. He was asked if he was allowed to vote in elections, he said he didn’t vote as he had a different role. Asked what level within the MB he was, he said there were eight levels and he was level 7. He hadn’t been there long so he hadn’t been through many levels. Asked what they were, he said there were family communities and then after that there were branches. He was asked what their names were, and he said muntasib (which was his level).
Asked to confirm that he did no training, he said he just helped people and did services, like for those in prison. Asked how long he was detained for, he said he was kept for around 15 days for investigation and then released. This happened each time to him but he was let go because he wasn’t important. He was never detained or arrested with his brother.
Asked why he left, he claimed that the last time he was released he was told that if he came back and didn’t stop his MB activities they would kill him. He left around a week after this. He had no problems in leaving the airport because he had not been to court. He also paid someone at the airport so he wouldn’t be stopped. Asked who he paid, he said it was someone with contacts there. Asked if he had mentioned this previously, he said that he was only asked how he left. This was the first time he had mentioned it.
Asked if he got his visa from the embassy in Cairo, he said that he was in [Country 1] when he got the visa. Asked why he didn’t fly from Cairo to Australia having gotten the visa there, he claimed that he didn’t know what to do and someone told him that to get an Australian visa he had to go to [Country 1]. Asked why he would believe that given there was an embassy in Cairo – the claim itself didn’t sound correct. He said he felt like he was drowning and he just wanted to leave the country.
When he arrived in Australia he had an interview and told them the same thing. He was asked why, if he was a committed MB member, he didn’t take his family and go across to Turkey which was a much more MB-friendly society rather than come to a secular, liberal democracy. He said at the time relations between Turkey and Egypt weren’t good and Australia was a free country. It was put to him that thousands of MB members went from Egypt to Turkey so relations mustn’t have been that bad. He said this must have been before he left. He was asked to provide country information that supported his claim regarding the bad relations between Egypt and Turkey as the Tribunal wasn’t aware of issues that stopped people from travelling at this time (no country information was provided post-hearing).
He said that he needed a permit for countries like [Country 1] and Turkey and so he went to [Country 2] first, then [Country 1]. It was put to him that this must have taken some time. It was put to him that he had come to Australia in order to seek protection and he agreed with this. He was asked why it then took him six months to apply, particularly given his brother was here and had applied previously so he would be aware of the process. He said he had arrived on a student visa and was hoping to bring his wife and daughter but the rules changed.
The person helping him told him that he would get him a student visa and he couldn’t read so he trusted this person who then told him that he had to travel with a woman. Asked if he came on a student visa, he said that he didn’t. It was put to him that he had previously said he was on a student visa and wanted to bring his wife later. He said he was lied to. Asked what he was going to study and where, he said he was told he would do an English course but then business or something else. He was asked why, if he thought he was going to come to study English why he didn’t just apply through the embassy in Cairo given this story he was telling made no sense. The Tribunal was concerned that he knew what he was doing and had a fake marriage in order to enter Australia for economic purposes.
He claimed that he wasn’t aware of the situation until he was at the airport in [Country 1] and was told he had to come as a person’s husband. He had a job in Egypt and left because he was scared for his life. He was asked why it took him six months to apply for protection given he knew he wasn’t here to study from the time he was at the airport in [Country 1]. He said he wanted to apply and wanted to see what his options were.
Asked if he was active on social media or otherwise with respect to the MB in Australia, he said he was in contact with the group and went to protests with them. He said he had photos but somehow they had been seen by the government in Egypt and they had caused problems – his family told him. Asked when he attended the protests in Australia, he said they were in January 2017 although he had been with them before. Since then, he stopped going to protests because of the problems it caused for his family. Asked when the government told his family about these protests, he claimed it was around a week after the protest – some time in 2017. Asked if he mentioned this to DIBP in his interview, he said they never asked him about protests in the interview so he never told them. It was put to him that he didn’t need to be asked and could have told them. He had to give short answers and couldn’t remember if the interview was before or after the protests. He was told it was after the protest.
He was told about s 424AA and it was put to him that he had claimed that he had been approached by the MB to join them around 2005. In his interview he said that he contacted the MB to join them and began working for them in his village and that this was around 2009/10. This inconsistency could call into question whether he had ever actually been in the MB. He said that he was still a member in 2009/10.
It was also put to him that in his interview he claimed to have been detained four times in 2010 (even given the names of the months) and detained for seven days in 2013 and then many times after that. There was an inconsistency here which called into question the truthfulness of the claim to have been detained by authorities. He said he may have forgotten dates because he had been here for so long. Each time he was detained was for less than 15 days.
It was also put to him that he had claimed that he wasn’t asked about any protests in Australia yet it was put to him that he was asked and responded that he had protested with [an organisation] while in Australia. Yet he made no mention that the authorities had come to his family’s house in Egypt with a photo of him at the protests even though the interview occurred after the protest. This could call into question the truthfulness of this claim. He stated that the interpreter kept on stopping him so he only half said what he wanted. It was put to him that the member had listened to it and he didn’t get the sense this happened – the applicant was told that he could provide evidence of this claim regarding being cut-off after the hearing. He was also asked if he had previously submitted a written statement about being cut off during the interview and he said that he hadn’t.

It was put to him that his brother’s claims regarding his own membership in the MB had not been accepted in Australia and appeals up to and including the Federal Court had been unsuccessful. He had also mentioned in one of his statements that he had been arrested with the applicant at one point although the applicant denied that at the hearing when asked. He claimed not to know the outcome of his brother’s claims which was strange given they lived together and his brother’s claim to be in the MB had been rejected and the Tribunal had similar concerns regarding the applicant’s claim.
He said the protests were really big so he may not know if the other was arrested and his brother was already in Australia. It was put to him that his brother had said they were detained together. He stated that the applicant could be talking about his other brother.
He was also told about s 5J(6) and it was put to him that his attendance at the protest in Australia came after he had submitted a protection visa application, he didn’t appear to have done anything after it and so the concern was that it was done solely to create a refugee profile. He said he wouldn’t leave his daughter in Egypt all this time if he didn’t need to.
The hearing was then adjourned to the following week when the applicant’s witnesses were called by phone. [Mr A] was asked if he wished to add anything to his written statement and he said that he didn’t. He didn’t know the applicant prior to his arrival in Australia and didn’t know anything about any political activities he may have undertaken in Egypt. He was asked about the number of activities the applicant had taken part in in Australia, and he said that the applicant had been with them for the last four or five years but couldn’t recall how many activities he had been at. The applicantwas an active member of Rab’ah Australia.
Asked whether he was talking about dozens of activities or a few. He said they had two main commemorations a year and there were other activities as well. They hadn’t been active much during COVID. He said he had attended five to 10 events (the commemorations). He was asked what he meant about the applicant becoming more active on social media since the coup in Egypt, and he said they had a [social media] page and if they were to put a press release on it they would have a meeting about it and listen to everyone’s opinion about it. He agreed that the applicant didn’t post on social media but he was involved in meetings where people’s opinions were canvassed. The applicant was not an administrator. Asked if he organised the protests or just attended, he said that he drove people who needed to go there. The witness said that anyone who wanted to help by attending or doing things they are happy to have them and the applicant was a volunteer.
Mr [B] was also called and asked if he wanted to add anything to the statutory declaration that he had previously provided. He said he didn’t but that the applicant attended and was active in organising protests in Australia. He didn’t know the applicant in Egypt – asked how many activities the applicant had attended in Australia he said they had two large protest events annually and between them they may have others. He had attended around 80 per cent of these. Since he met the applicant in 2016 he was active and always ready to protest. He was asked what he meant the applicant was one of the main organisers – he said that he meant he helped organise meetings and help with transport and printing. Asked if he was more someone who just did things he was asked to do rather than act as an organiser, he said he called the applicant an organiser because he attended the meetings at which the protest was organised.
It was put to him that the protests weren’t very big and looked from the photos to be about 20-30 people. He said it was bigger to start but the numbers reduced due to security problems and a fear of being known as the members of the embassy took photos and they chased people whose photos were taken. He was asked what he meant that the applicant was active in the social media he said that he shared the posts they put on [social media] and he always speaks against the regime and this showed he agreed with the opposition. He was asked whether what he meant by saying the applicant was ‘actively involved’ in their social media group was that he shared some of their posts on his own [social media] page. He said he couldn’t remember how many times the applicant had posted anti-regime posts but it showed he was against the regime.
He was asked what groups he was referring to when he said the applicant was active in social media groups, he said he meant active social media groups and meant he posted on his own page. He was asked what other groups he meant as he spoke of the plural. He said there were other groups outside Sydney and they commented on his page. It was put to him that there was no evidence given of this. He had nothing further to add.
The applicant was asked why he hadn’t provided any evidence of him sharing any of the material it was alleged by the witness that he had. He claimed he was very active on [social media] but they caused so many problems so he began to delete the posts. Asked when he began to delete them, he said that it was about 2017 and he began using text or phone. Asked if he ever mentioned this previously he said he hadn’t. He was asked why the witnesses said he was active in posting things but he hadn’t been for five years. He said he commented on [social media] – it was put to him that this must be on his [social media] page and then he said he had deleted them but it must still be on the groups. It was put to him that he had provided no evidence of this and he said again he had deleted them out of concern for his family.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a Student visa on [date] December 2015 and applied for protection on 9 June 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 video.
The applicant is a [age] year-old married male whose wife and child remain in Egypt. He has a brother with whom he lives in Australia – the brother has had his claim for protection in Australia denied. The applicant claims he feared being detained and possibly killed because he was a Muslim Brotherhood (MB) member and would be considered a terrorist. This was his only claim.
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 many of his claims in order to be granted a protection visa.
MB Membership in Egypt
I do not accept that there is a real chance that the applicant is, was or would be perceived to be a MB member in the reasonably foreseeable future if he were to return to Egypt. Nor do I accept that he was ever detained by the Egyptian authorities because of links to the MB or participation in any protest activity.
To begin with his account of his membership and participation is inconsistent with available country information. The applicant said at hearing that he had reached the level of muntasib in the MB and that he had done this without having undertaken any training – the MB just speak to people, decide to accept them, introduce them to other people and tell them what their role would be. It didn’t take him long to be a member. Yet this is inconsistent with country information that indicates in order to be a muntasib, one must have completed a curriculum of study and the process can take several years.[1] The same country information indicates that a muntasib is the third level, or tier of entry, whereas he claimed that it was the seventh of eight levels.
[1] Eric Taeger, ‘The Unbreakable Muslim Brotherhood: Grim Prospects for a Liberal Egypt’, Foreign Affairs, September-October 2011.
His accounts regarding his joining the MB were also inconsistent – in his DIBP interview he claimed that he contacted the MB to join them and began working for them in his village and this occurred around 2009/2010. Yet at hearing he claimed the MB went around and picked people and told them about their system, and they did this to him between 2005-2007. I do not accept that he meant he was still a member in 2009/2010 as this does not adequately address the date discrepancy issue, nor does it explain the discrepancy in his account of who approached who to join.
He was also inconsistent with respect to the attention paid to him by the Egyptian authorities. In his application he claimed that he was detained four times before Mubarak’s fall, once during the 2011 revolution, during the 2013 coup when he was detained for a week and many times since then. In his interview he claimed that he was detained four times in 2010, for a week in 2013 and many times after that. At the hearing, he claimed that he was detained three or four times in total, and perhaps once or twice before Rab’ah (August 2013). I do not accept that the inconsistency was because he had been in Australia for a long time. Whilst I appreciate it has been a number of years, he was given sufficient notice of the hearing to know that he would need to recount certain events and it is reasonable to believe that being detained is a significant event that he would be expected to recount.
Because I do not accept that the applicant was a MB member or of any interest to the security authorities in Egypt, I also do not accept that the applicant’s home and family home were raided or that his sister was treated very badly, that he was detained in an apartment by plain clothes people and abused, or that he was threatened with imprisonment if he did not cooperate with authorities and give them information about other people. It also follows that he did not work in the office of the MB candidate in his area
Political Activity in Australia
I accept that the applicant has attended a protest against the Egyptian government in Sydney in January 2017, as evidenced by the undated photos he [provided]. From the clothes he wore and the other people in the pictures, it appears to be the same protest shown in the photos. I do not however, accept that this fact is known by the Egyptian government or that Egyptian authorities visited the applicant’s family in Egypt and questioned them regarding the applicant’s attendance at the Sydney protest.
I lend little weight to the witness’s claim that members of the embassy (assuming he meant consulate) took photos of protestors and chased people whose photos were taken. There was no supporting information such as independent media reports of such activity on the part of consular staff, nor did he explain how individuals could be identified by name simply through their photo being taken. The claim about protestors whose photos have been taken being ‘chased’, as well as the applicant’s claim that authorities in Egypt questioned his family regarding his attendance at protests is also inconsistent with available country information that says while Egyptian authorities take note of political activities conducted by Egyptians abroad only particularly high-profile cases (ie. those that gain media notoriety in Egypt) are generally of interest to Egyptian authorities.[2]
[2] DFAT Country Information Report – Egypt, 17 June 2019, p 45.
The applicant claimed at hearing that the authorities had come around to his family’s house a week after the January 2017 protest. Yet he had never mentioned this to DIBP during his interview with them. I do not accept that this was because DIBP never asked him about his attendance at protests in Australia – the member listened to a recording of the interview and he was asked about his attendance at protests in Australia. Nor do I accept that his failure to mention this claim at the interview was because the interpreter kept on cutting him off and he only got to say half of what he wanted – this was not apparent from the member’s listening of the interview and the was given an opportunity post-hearing to provide the Tribunal with examples of where this occurred. He never requested a copy of the interview recording nor did he provide any information regarding the interview and the role of the interpreter post-hearing.
Regarding his involvement with the group, I have taken into account the statutory declarations made by [Mr B] and [Mr A] and my discussions with them at hearing. Neither of them knew him in Egypt so could only speak to his activities in Australia. In his declaration Mr [B] described him as ‘one of the main organisers’ of Rabaa Australia’s activities in Sydney, said the applicant became actively involved against the coup through the use of social media groups and was present at most of Rabaa activities specifically their two main protest activities each year. Mr [A] also did not know him in Egypt but described him as ‘one of the main organisers’ of Rabaa Australia’s activities in Sydney, that he has become more involved on social media since the coup, and that he has participated in several Rabaa activities in Australia.
I lend these declarations little weight in determining the degree to which the applicant is a truly committed anti-government activist, or that his activities would be known by the Egyptian authorities. What the witnesses described when they talked about the applicant actual activities as ‘one of the main organisers of Rabaa’ was someone that attended meetings and volunteered to drive people and print pamphlets. No evidence was presented in support of this claim, nor has he previously mentioned this level of activity with the organisation however I am willing to accept that the applicant has done some form of voluntary work with Rabaa since he has been in Australia, such as printing some pamphlets and volunteering to drive people to the demonstration in Sydney.
Their accounts of his protest activity were inconsistent with the applicant’s own claim to have undertaken one, in January 2017. Mr [A] initially couldn’t recall how many activities the applicant had taken part in, but later opined that he had attended five to 10 protests. Mr [B] said that the applicant had attended 80 per cent of their bi-annual protests. Given the applicant said he had not attended any since January 2017 due to fears of potential harm to his family I am not satisfied that the witnesses’ evidence is accurate in this regard and am satisfied that the applicant attended one demonstration in Australia.
Regarding his active involvement with social media groups against the government, Mr [A] said that the applicant attended meetings where Rabaa discussed what should be put up on their [social media] page or in press releases. He said that the applicant didn’t post on social media. Mr [B] said the applicant always shared the posts they put on [social media] and this showed he was against the regime. Mr [B] said the applicant posted material on his own ([social media]) page and that other groups outside Sydney commented on the applicant’s page.
The applicant had never previously made a claim regarding any anti-government social media activity he had been involved in. I do not accept his subsequent claim that he was very active on [social media] but he deleted the posts from 2017 because they caused him so many problems. I do not accept that the witnesses were referring to his activity on [social media] when they spoke of his online activity but that he could not provide any examples of this because he had deleted them, again out of concern for his family.
Thus, while I accept that the applicant has attended a protest organised by Rabaa Australia and may have done a few volunteer acts for them such as driving or printing pamphlets, I do not accept that this is indicative of a true commitment to anti-government activism. He has not attended a protest in Australia for five years (noting the impact of COVID since 2020), I have not accepted the evidence of the witnesses nor of the applicant that he has been active on social media posting anti-government activity.
Because I do not accept that his limited activity with Rabaa Australia is evidence of a true anti-government stance, I am satisfied that it was done for the sole purpose of creating a refugee profile and therefore, I disregard that conduct in determining whether the applicant has a well-founded fear of persecution as a consequence of it.
Other Issues
The ease with which the applicant left Egypt and the manner in which he entered Australia are also not indicative of someone of interest to Egyptian authorities or who left because of a fear of the authorities. To begin with, I do not accept that he believed what he had been told, that he had to go to [Country 1] in order to get a visa to come to Australia. I don’t accept that he didn’t know what to do regarding getting an Australian visa given that there is an Australian embassy in Cairo where he could have enquired.
I note that he had no problems leaving Cairo airport even though he claimed to have been detained multiple times and the authorities had threatened to kill him. He claimed this was because he had not been to court and he paid someone at the airport not to stop him. Country information indicates that the Interior Ministry and the intelligence services can amend the airport warning list to include people of interest to them, regardless of whether they have criminal charges pending.[3]
[3] DFAT Country Information Report – Egypt, 17 June 2019, p 44.
I do not accept that he paid someone at the airport given he had never raised this claim previously and it is reasonable to believe that he would have done so without having needed to have been asked the specific question. He then entered Australia on a student visa as the dependent spouse of a [Country 1] national in what was a sham marriage. While people in situations where they genuinely fear for their lives may seek to use people-smugglers or lie in order to get to a place of safety, and the applicant claimed at hearing that he felt that he was drowning and just had to leave, the applicant waited for six months after arriving in Australia before he applied for protection even though he claimed to want to come here for protection.
I do not accept that the delay was because he wanted to see what his options were before applying, or that he was going to bring his wife and daughter over but the rules changed. It makes no sense that he thought he would be able to bring his real wife over given he had entered the country on the basis of falsely claiming to be married to a [Country 1] national, nor did he say what rules had changed. I also note that the applicant already had a brother in Australia who had applied (unsuccessfully) for a protection visa as a member of the MB, so he would have easily been able to find out the process to apply himself.
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 5J reason either now or in the reasonably foreseeable future.
Complementary Protection

I do not accept that the applicant was ever a MB member or would be perceived to be one, or that he was ever detained by Egyptian authorities for any reason. While I have disregarded the applicant’s activity with Raba’a Australia for s 5J(6) purposes, I have had regard to them for the purposes of s. 36(2)(aa). His activity has been limited to one protest and some driving and pamphlet production tasks, the undated photo of him he gave as evidence is as part of a crowd and does not include his name, and he is not active on social media as an anti-government activist. Although witnesses claimed that consular staff took photos of demonstrators, there was no supporting evidence given that this actually occurred, nor was any explanation given as to how the individuals could be identified even if photos had been taken or shown on social media. Regardless, as I have noted before country information indicates that Egyptian authorities are generally only interested in overseas political activities that gain media notoriety in Egypt – no evidence was presented that this small demonstration reached anywhere near that threshold. Because of these reasons 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 Egypt, 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.
…

[2022] AATA 1339

21 March 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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