1830159 (Refugee)

1830159 (Refugee) [2022] AATA 3223 (15 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Lidia Soliman (MARN: 0747355)
CASE NUMBER: 1830159

COUNTRY OF REFERENCE: Egypt
MEMBER:Luke Hardy
DATE:15 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 August 2022 at 1:11pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – fear of Muslim extremists – forced divorce – forced conversion to Islam – custody of children – workplace harassment – claims of insulting Islam – limited geographical relocations – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, [named], are a married couple who are citizens of Egypt. They came to Australia for a three-month visit in 2010. [The applicant] also visited for three months in 2013. They both came here for a visit in 2013-14: [the applicant] stayed five months and [his wife] stayed seven months.
The applicants last entered Australia as visitors [in] May 2017. Their visas were valid for twelve months. They lodged their PV application on 9 April 2018. [The applicant] alone made substantive claims; [the applicant’s wife] was included as a dependent applicant.
The delegate refused to grant the visas on 4 October 2018.
[The applicant] appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent.
The Tribunal hearing was facilitated by an interpreter in the Arabic (Standard) and English languages. Attention was paid to ensuring that [the applicant], a native speaker of Egyptian Arabic, was not disadvantaged by any pronunciation or other colloquial issues. Whereas there were a few notes and corrections, some brought to the Tribunal’s attention by the adviser, I am satisfied that [the applicant] was given a fair opportunity to speak to his claims and was not prevented from giving cogent evidence by interpretation issues or any other factors outside of his control such as age or infirmity.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision, which contains an uncontested summary of his written and oral claims as well as references to critical issues discussed with the delegate at interview.
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 of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The Issues
The issue in this case is whether, on accepted evidence, the applicants are entitled to protection as refugees or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision in this matter should be affirmed.
Claims to the Department of Home Affairs (the Department)
[The applicant], a Coptic Christian, claims he was born in [year] in Bani Souaf, in Upper Egypt. He has a number of siblings currently living in Egypt and others respectively residing in [named countries]. He has one deceased brother who left a number of children, one named [Nephew A], and some others at least one of whom has intellectual disability.
[The applicant] lived, was educated and worked in Bani Souaf between the year of his birth and 1986. From 1986 to June 2016 his residence was in the Cairo district of [District 1]. From June 2016 to March 2017 his residence was in the [District 2] district of Cairo. [Deleted.] I note that [District 1] and [District 2] are neighbouring districts in Cairo. [Deleted.] The two districts are arguably cosmopolitan, with a number of Coptic Christian sites nearby, including [a named site].
[The applicant] claims he resided in [Town 1] in Cairo from March to April 2017 and at another address in [District 1] from April to May of that year just before coming to Australia.
[The applicant] claims to have worked in [Country 1] from 1982 to 1989. He claims to have worked from December 2005 until [March] 2017 as [an occupation 1] with a firm called [Employer 1] located at [specified address], Cairo. He claimed his job involved [specialist duties].
[The applicant] submitted an eight-page statutory declaration with the original PV application form. The following citation from the primary decision record is a useful summary of [the applicant’s] claims as made in the original declaration and of his oral testimony as given to the delegate:
·He has a close relationship with his nephew [Nephew A], who married a Coptic Christian woman [Ms A]
·[Ms A’s] sister and father converted to Islam
·After Christmas 2015, [Nephew A] confided with him that [Ms A] had left him and taken the children with her
·[Nephew A] went to police to report the matter. The police investigation stated [Ms A] had officially converted to Islam in [Town 2] and took an AVO against [Nephew A]. It also included [Ms A’s] declaration to Islam attached
·[Nephew A] confirmed this when he found photos of his children on [social media]
·[Nephew A] was upset and contacted his father in law who would be able to contact [Ms A], for him to see his children
·[Nephew A’s] father-in-law told him to go to his home and discuss this. There were people at the home who attacked [Nephew A]. They threatened [Nephew A] to sign the title deeds to his home to his wife in order for him to see his children. He refused to sign anything
·[Nephew A] filed in the court for custody of his children
·He [the applicant] offered to have [Ms A] stay at his home so she would be away from the Muslim fanatics
·After his conversation with her, they searched [Ms A’s] phone and discovered that he had talked to her
·Another occasion he called [Ms A] and someone answered the phone. The unknown person told him not to call her again and that it would be better for him to stay away from her
·After a year, [Ms A] called [Nephew A] and said that she and the children wanted to come home. [Ms A] [had been] induced to Islam and when she realised that she wanted to leave, they forced her to stay and threatened her that if she ever mentioned that she wanted to return to Christianity they [would] take her children away from her
·[Ms A’s] divorce to [Nephew A] was then annulled and they remarried in a church to obtain another marriage certificate in secrecy
·After the service they stayed with him then moved to his other nephew’s home in [Town 3]
·After a short time, [Ms A’s] previous husband started making threatening phone calls asking him the whereabouts of his nephew and the family
·He denied knowing, however they did not leave him alone
·Since then it has caused him and his [wife] grief. They terrified him and [his wife] by constantly ringing their doorbell in the middle of the night
·They punctured his car tyres with a knife. He reported this to the police who stated they could not investigate it unless he had a name
·He found on many occasions graffiti on his windscreen and broken mirrors. Due to the damage he decided to sell his car
·He had issues with the building guard because he is a Muslim who refused to assist him and [his wife]. On one occasion the guard, switched the electricity off whilst they were in the lift
·This incident occurred in June 2016 and [[the applicant] and his wife then] decided to move to another apartment in [District 2]
·[[The applicant] and his wife] thought they were safe but they had found them. He believes the tradesmen may have told these people where he moved
·The threatening phone calls continued
·On one occasion after Friday church service, [[the applicant] and his wife] were going home when two people on motorbikes pushed them to the ground and threatened they will continue to harass him
·He went to the police station to report the incident, however the police told him they could only investigate if he could provide names
·Around five months after [Nephew A] was reunited with his family, he called to tell him that he came home and found it ransacked. His wife and children had been kidnapped
·He tried to call [Ms A] but a man answered the phone and said to him “you didn’t learn your lesson yet, are you not afraid for your lives, you knew her whereabouts and didn’t tell us”
·[Nephew A] filed a court order to obtain custody of his children again
·[Ms A] had declared herself a Muslim and [was] forced to marry. She cannot reunite with [Nephew A] again
·They threatened [[the applicant] that] if he came near the children they will kill him and [his wife]
·His nephew feared for his life and moved to another area to avoid the threats. In particular [sic] after he received the court order’s approval for custody of his children again
·In September 2016, he was shocked when a man come [sic] to his work to see him. He started to yell and threaten him accusing him of kidnapping a Muslim woman
·After this incident he has been discriminated against by his supervisor who is a Muslim Salafist
·In February 2017, the same man arrived to his manager. His manager approached him and told him to convince his nephew to drop all court appeals against the devout Muslims
·He became angry and proceeded to have a religious argument, insulting their respective religion
·He knew that he was in danger, he quickly left their home and moved into his [Relative A’s] homes until their Australian visas were granted in March 2017 [sic; the visas were actually granted on 10 May 2017]
·He and [his wife] arrived in Australia sick and traumatised by all the events that took place in Egypt.
[Tribunal’s corrections and emphasis]
It is useful to show [the applicant’s] claims about what happened in his workplace in the detail he provided in his statutory declaration, as the delegate’s summary of this aspect of his claims arguably loses something in its concision:
69. I was shocked that after one of the phone calls we made in an attempt to get through to [Ms A], in September 2016, that a man came to my work and asked to see me. He appeared to be a Salafist, as he had a beard and no moustache.
70. He threatened me and he was yelling and cursing and accusing me of kidnapping a Mulsim [sic] woman. I believe he was raising his voice and yelling on purpose so other people at work would hear him.
71. My manager came and took him into his office, my manager himself was a Suni Muslim and fanatic Salafist and I was the only Christian working there for years because they needed me in Specific projects I was specialized in them. He had always treated me uniformly not bad, but since that visit everything changed.
72. l was being penalised at work for any religious leaves I took, l did not get any bonus at the
end of the year despite the fact that everyone else did. I was humiliated and embarrassed in front of other colleagues and I was sent a very old and bad truck to pick me up for work as a work transportation while other colleagues were sent cars. The truck drive each day took so much energy out of me and often the truck would stop on the way, which would mean I would be late and my manager would penalise me, despite it not being my fault.
73. They started discussing religion with me at work blatantly stating that my religion is
infidelity and the Bible is distorted and he [the manager] gave me books to read in his trial [effort] to convert me to Islam. He first started by saying I am a kind elderly man and it's a waste to be a Christian in his opinion, I will end up in hades.
74. I endured all this in silence, however the same man came again in February 2017, this time, he went straight to my manager without speaking to me.
75. The manager's tone changed even further after this visit, it got much more aggressive, he
changed his tone from trying to convince me to threatening me.
76. Once while he was threatening me, he said to me that if I knew what was good for me I would convince my nephew to drop all court cases against those pious Muslims, who save people from going to hell, by guiding them to the true path of Islam.
77. He was saying that I too have to be saved myself and I have to attest that Islam is the right
religion and that there is no prophet except Mohammed, as he is the true prophet sent from God. He said that we insult God by saying he came as a man and that God would be so weak as to be crucified and how can I believe this nonsense. He said your bible is falsified and that we are infidels as we worship three Gods.
78. I had had enough of him insulting Christianity, I got to a point where I had to defend my
faith, I told him that he can't even compare Mohammed with Jesus. Mohammed who married a girl at the age of nine and he married Zeinab after he killed her father and husband on exactly the same day. I said Islam is built on murder and aggression and instead of forcing people into Islam by terrorising them and threatening them, leave them practice their religion in peace.
79. He was outraged by my words, he was yelling and shouting that I insulted Islam and
the prophet and that the result of this is death. He physically attacked me, and others at work
were also yelling at me, and cursing and swearing.
80. Two people came and took me and let me leave the building.
81. I knew I couldn't go back to work, I left work completely and asked for the indemnity, they
refused to pay although I was working for twelve years in that place.
82. I received a clear threat that the result of my insult to Islam will cost me my life and my death.
83. At that point, we knew we had to leave Egypt quickly. We left our house of course until our visas were granted. We went to my [Relative A’s] houses, located in … [District 1]. This was in March 2017.
[Tribunal’s emphasis]
[The applicant] later explained to the Tribunal that “indemnity” in this context means “dues” or some kind of superannuation dividend.
[The applicant] submitted a copy of his marriage certificate to the Department. I accept that he is married to [his wife].
DFAT describes Salafists in Egypt as Islamists who had some influence during the Morsi period, aligning with the banned Muslim Brotherhood to attack Shi’a Muslims in Egypt.[1] The Carnegie Endowment for International Peace has described Salafists as being “known for their doctrinal intransigence and strong condemnations of any group or movement that does not share their religious views.”[2] Their political wing Hizb-al-Nour is described as “the rare example of a party that has been both extremely pragmatic in its political positions and strongly sectarian and intransigent in its religious stances.”
[1] DFAT Country Information Report: Egypt, 17 June 2019, at paragraph 3.29
[2] “Egypt’s Pragmatic Salafis: The Politics of Hizb al-Nour,” Carnegie Endowment for International Peace, 1 November 2016,
The delegate provided a fuller description of [the applicant’s] evidence at interview:
The applicant stated whilst living in Egypt his cause for concern commenced when around January 2015, his nephew [Nephew A’s] wife [Ms A] had left him, taking his children with her. The applicant and his nephew had a close relationship similar to a father and son. He tried to help him anyway he could as [Nephew A’s] father died and he considered himself a father figure to him.
Through his testimony, he explained how he tried to assist [Nephew A] by continuously contacting [Ms A]. [Ms A] during this period had converted to Islam and married a Muslim man. [Ms A’s] new husband and family were restricting her calls and movements.
The applicant explained that when he rang [Ms A’s] phone he would initially be told that this is not her number and not to ring again. This escalated to threats that these people knew who he was and wanted to take revenge on him. The applicant was asked why he did not change his phone number. He stated he used this phone number for both work and personal use therefore he could not change the number.
[Ms A] decided to come back to [Nephew A] and reconvert to her Christian faith. The applicant assisted them and had the couple with the children stay at his home for a few days. After the ceremonies the family moved to [Town 3].
The applicant stated that the threats started becoming personal when these people had some teenagers involved to come to their home and start ringing their doorbell in the middle of the night. He stated further that the janitor of the apartments is a Muslim. He switched the power off whilst the applicant and his wife were in the elevator. The applicant decided to relocate to other apartments in [District 2], which is a better area to live and is around 4kms away from [District 1].
After a short period, he noticed the same teenagers outside their apartment. The applicant had his car vandalised several times so he decided to sell it.
Around five months after the reunion, [Nephew A] came home to find his home ransacked, [Ms A] and his children had disappeared. The applicant decided to try to contact [Ms A] again. When he contacted her, a male voice threatened him to stop trying to take the children away [or else he would] kill him if he continued to get involved.
The applicant was asked whether [Nephew A] had been threatened or harmed during this period of 12 months of harassment and whether [Nephew A] knew of the threats being made to the applicant. [Nephew A] had known about the threats made to the applicant but [Nephew A] did not ask for help and because they had a close relationship, he wanted to help him in any way he could, particularly for the children’s sake.
Workplace Discrimination and Blasphemy
Around September 2016, a Muslim man came to his workplace to threaten him. His manager was a Muslim and heard this. His manager started to discriminate against him at work, by not giving his work entitlements owed.
Around February 2017, this same man came to his workplace again, and saw his manager. He threatened the applicant to get [Nephew A] to withdraw the custody order of the children and for him to stop assisting, because these people were devout Muslims.
The arguments between them became more involved, yelling insults at each other in regards their religious beliefs until the Muslim man grabbed a stapler and threw it at the applicant and threatened to kill him.
A few days later, the applicant returned to work to go to the office to check on his salary and entitlements when he received a phone call saying that his life will end.
The applicant decided that he could not live in Egypt, as he feared for his life. He and his wife decided to travel to Australia where his children all live.
Protection and Relocation
The applicant was asked whether he had contacted the police to report this. He stated that he did not go because he would have to tell them the story on what was going on with [Nephew A] and [Ms A]. The police are corrupt and prejudiced against Copts. The police could escalate the matter to state security forces and he did not want to get into this, as it will lead to charges of contempt of the Islamic religion.
The applicant was asked why he did not relocate to an area such as Alexandria instead of areas within close proximity to [District 1] and [District 2]. He stated these people are well organised and can get him anywhere he lived.
Past Harm
The applicant was asked since arriving to Australia whether he has heard from [Nephew A]. He stated that he tried contacting him but his phone was always switched off and [Nephew A] does not have internet therefore, it makes it difficult for him to be contacted. The applicant was asked whether he tried contacting [Nephew A’s] siblings to find out what has happened to him. He stated [Nephew A’s] sisters are all married with their own lives and living in Giza.
Delay in lodging protection visa
The applicant was asked why he did not apply for a tourist visa to travel to Australia in 2016 when these incidents occurred. He stated that he had his work, friends and family he wanted to continue to live in Egypt. He thought these incidents were not serious particularly the teenagers causing trouble was not a real risk.
He decided that the threats made by the Muslim man and the religious disagreement made it too dangerous for him to live in Egypt.
The applicant was asked why it took him close to 11 months to lodge his protection claims. He stated that he was in Western Australia visiting his [son], who lived in [Town 4]. His son lived away from Perth and did not know anyone to assist them. In addition, his son had been hospitalised and the applicant had also had heart problems. It was when he travelled to Sydney, that his eldest son found a migration agent to assist him with the application.
[Tribunal’s emphasis]

The response to the delegate’s question about why [the applicant] did not relocate to somewhere farther away, such as Alexandria (a city with a large Coptic population) struck me as odd in the claimed circumstances, because it appeared to make no sense, considering the relatively much more local relocations in [District 1] and [District 2] districts. Adopting the same logic to rule out somewhere farther away, like Alexandria, makes those two arguably closer moves seem pointless and redundant.
Meanwhile, whereas [the applicant] claimed that he moved from [District 1] to [District 2] in June 2016 for his safety and to try avoid harassment he was receiving there, he remained at the same workplace until the end of February 2017 even after ill-treatment at work purportedly intensified in September 2016.
Evidence submitted to the Tribunal
[The applicant] submitted a number of documents to the Tribunal, including:
·Translated legal notices and notifications relating to ongoing litigation between [Nephew A] and [Ms A];
·Translated purported 2020 Muslim conversion certificate pertaining to [Nephew A’s] son [name], now “Mohamed” (b. [year]);
·Evidence of a 2022 legal dispute between “Mohamed” and [Nephew A];
·Evidence of a case relating maintenance and custody of [Nephew A’s] daughter [name], now “[new name]”;
·Birth certificates pertaining to [Nephew A’s] children;
·Evidence of [the applicant’s wife] having had [specified] surgery and having been treated for a [specified] condition;
·A 27 July 2022 letter of personal support from a parish priest in [NSW];
·Evidence of [the applicant] being treated for a range of medical conditions [specified];
[The applicant] also submitted a new statutory declaration dated 8 August 2022. This statement provides an update regarding the circumstances of [Nephew A’s] children and explains some of the material listed above. One of the cases filed in court is a petition for [Nephew A] to be imprisoned for failing to pay child support to “Mohamed.” The statutory declaration indicates in some detail that [Ms A] and her children are pursuing child support and maintenance with some vigour against [Nephew A] who is purportedly unable to afford to pay the amounts demanded (or set by previous courts). The declaration asserts that a judge in one of these matters suggested to [Nephew A] that things might be easier for him if he just converted to Islam.
The statement says that [Nephew A] is financially ruined, having stopped working in a government job to [work as an occupation 2] in Bani Souaf and, more recently, [another occupation 2 job] there; decisions [Nephew A] purportedly made for his own safety because these jobs were not “stationary” and therefore safer for him than jobs that were.
[The applicant] declared that for two years after coming to Australia be had had no contact with [Nephew A] because the latter had not used his mobile telephone or spent much time on the Internet. He said that during this period he had relied on a relative called [Mr A] (evidently his [specified relative]) who had kept him up-to-date with [Nephew A’s] circumstances. This evidence does not sit squarely with [the applicant’s] evidence to the delegate on the matter: at interview, he had evidently said merely that he had not had any news of [Nephew A] and could not reach him through family because his sisters all had their own lives to lead in Giza. I observe this noting that in his latest statutory declaration, [the applicant] said that [Nephew A’s] sisters in Giza all have various degrees of intellectual incapacity.
In the statutory declaration, [the applicant] claimed that [Ms A’s] family and supporters managed to turn all of the other residents in his and his wife’s apartment building in [District 1] against them. He claimed that they located him wherever he and his wife moved. He contextualised the medical evidence submitted, saying this is evidence of his and his wife’s individual vulnerability and that it would prevent him from keeping on the move in Egypt to avoid being persecuted. He declared that the uncertainty of his immigrations status is placing stress on him and his wife.
Evidence given at the Tribunal hearing
[The applicant] told me he and his wife have two adult sons in Australia, both of them Australian citizens. He said they also have [number] Australian grandchildren. Throughout the hearing he confirmed many of the details previously provided about [Nephew A] being the son of his late brother and about the circumstances of some of [Nephew A’s] siblings.
[The applicant] said that [Nephew A’s] first problems with [Ms A] occurred in January 2015 when she moved out of the marital home in Bani Souaf and moved home to her mother’s. He said that [Ms A] took action against [Nephew A] in court soon after but withdrew her complaint after moving back in with him. [The applicant] said he was living in Cairo at the time. He said that [Nephew A] is nevertheless still contesting a number of matters in court, like the ones described in submissions above.
[The applicant] told me that in 2020 he was able to authorise his pension in Egypt to be collected by [Nephew A] in order to help him navigate some of the difficulties facing him there. He said he also gave sums of money to [Nephew A] before coming to Australia. He said that [an organisation] in Bani Souaf employs him in his capacity as [an occupation 2] and also helps him to support his intellectually disabled brother.
[The applicant] said that in the five or so years since the dispute with [Ms A] began, leading to conflict over the religious status and custody of their children, [Nephew A] sold the family home in Bani Souaf, bought another there and then sold that “because he was being followed,” whereupon he bought a third house “far away.” I asked hm if this was really about trying to avoid being located, or “followed,” by [Ms A] and her supporters as there was lots of evidence before me of [Nephew A’s] address details being disclosed to his adversaries in court, and he was also evidently working as [an occupation 1] in Bani Souaf as well. For example, he had said a little earlier in the hearing that he only began supporting [Nephew A] financially in 2020 because [Nephew A] had been able to use some of the proceeds of a house sale to fund some of his court costs. In reply, [the applicant] said that [Nephew A’s] current house is [in a nearby location]. Still, the suggestion that [Nephew A] sold successive houses to avoid being traced seemed somewhat far-fetched. On the other hand, the notion that one might need to do so to pay maintenance and, later on, court costs, whilst working on [an occupation 1] salary, seemed quite plausible.
[The applicant] changed or modified his evidence later in the hearing when he said that [Nephew A] only sometimes lives at his new house, living at other times with friends because he was being “pursued” by people. He said [Nephew A] is not living a normal life. I note there is evidence of people “pursuing” [Nephew A] in court papers submitted to the Tribunal: the matter in dispute being an allegation about [Nephew A] not having paid due child maintenance.
[The applicant] said that [Ms A’s] family and Muslim supporters have control of her. This claim seemed somewhat challenged by evidence to the effect that [Ms A] originally left the marital home voluntarily and even returned voluntarily to the marriage for a period.
I raised with [the applicant] the issue of his not having lost contact with [Nephew A] after coming to Australia, at least up until the interview with the delegate on 20 September 2018. To recap:
The applicant was asked since arriving to Australia whether he has heard from [Nephew A]. He stated that he tried contacting him but his phone was always switched off and [Nephew A] does not have internet therefore, it makes it difficult for him to be contacted. The applicant was asked whether he tried contacting [Nephew A’s] siblings to find out what has happened to him. He stated [Nephew A’s] sisters are all married with their own lives and living in Giza.
At the Tribunal hearing, [the applicant] said that he had always been in contact with [Nephew A] the whole time. Then he said that after he had come to Australia they had “had not much contact with each other” but only for a “short time.” I note that [the applicant] claimed in his recent statutory declaration that he had kept up to date with his [Nephew A’s] circumstances through his [relative] [Mr A]. He made no reference to [Mr A] in his evidence to the delegate or in his response to me. His explanations over time for apparently losing contact with [Nephew A] for at least a year upon arriving in Australia struck me as confused and improvised. On the evidence before him, the delegate expressed concern that [the applicant’s] fortunes might not have been as intertwined with [Nephew A’s] and on the same evidence, taken together with what [the applicant] declared in writing and testified at the Tribunal hearing, I have a similar concern.
I invited [the applicant] to address concerns raised by the delegate over his having said that he had not considered the harassment he received, purportedly from [Ms A’s] supporters in Egypt, sufficiently “serious” either to report to authorities or to avoid by getting away from Egypt much sooner than he did. In reply, he said he had told the delegate that when he suffered harassment in 2016 he and his wife moved house and moved again when it recurred. I asked him why he took a year after arriving in Australia to lodge his PV application and he cited the same reasons given to the delegate: he needed “time out” after what he had been through; he was living in [Town 4], WA, which he implied was remote; his [son] in Australia was ill, requiring him to drop grandchildren at school and pick them up again; and only after he moved to NSW did he receive help from his [son] in linking him up with a migration lawyer.
I asked [the applicant] to explain in more detail why he had told the delegate that at the time he was being harassed, throughout 2016, he did not think matters were sufficiently “serious” for him to report then to anyone or to motivate him to leave Egypt much sooner than he did. In response, he said that [Nephew A] was beaten up in March 2015. I put to him that it seemed not surprising that there might have been quite heated manifestations of the dispute in its earlier weeks. On this point, the adviser asked that I avoid assuming that the matter had transformed out of a violent one and, solely, into a civil court dispute; it was the adviser who brought to my attention that [the applicant] was still being “pursued” by people. [The applicant] added that [Nephew A] now stays away from people who try to pursue him.
I invited [the applicant] to focus on the kind of harassment he suffered in Egypt before departing the country in May 2017. He began by saying “they cut off power” in a lift in which he and his wife were travelling in their apartment building in [District 1] in June 2015. I asked him how he had been able to deduce that this had occurred deliberately and he said “they” also left rubbish in front of his apartment door and damaged his car. He said there were also telephone calls. Here he did not suggest any direct personal involvement from the apartment block guard, which is not to say that his evidence was explicitly inconsistent; still, I was surprised that when I asked him how he was so sure that the power outage in the lift was not accidental, he did not mention at that moment that the guard had done it.
I put to [the applicant] that, in any event, these events seemed allegedly to have occurred back in 2015 around the arguably heated time when [Nephew A] and the briefly reconciled [Ms A] were staying with him and [his wife]. In reply, he said, “Yes.” He said that even before [Nephew A] and [Ms A] came to stay with him he was being harassed.
I asked [the applicant] to tell me in detail what would happed to him were he to return or be removed to Egypt generally and, say, Cairo in particular. In reply, he said there was or would be harassment at work.
I asked [the applicant] about the incident in which he insulted, or was accused of insulting, Islam. As background to this part of the hearing, it is relevant to note the following information from DFAT (2019):
Article 98(f) of the Egyptian Criminal Code provides for prison sentences of up to five years and/or fines of up to EGP1000 ($AU145) for ‘exploiting and using religion in advocating and propagating extremist thoughts with the aim of instigating sedition and division or disdaining … any of the heavenly religions, or prejudicing national unity or social peace’. Articles 160 and 161 proscribe various acts connected with religion, including disturbing religious ceremonies, violating the sanctity of religious buildings or cemeteries, printing adulterated versions of holy books, or imitating religious ceremonies for the purpose of ridicule ... While the Misdemeanour Courts hear most cases, the Criminal Courts may have jurisdiction if the charge is serious enough to involve a potential term of imprisonment ... The Public Prosecution Office places charges, which may occur after a lawsuit is filed, a private citizen files a complaint, or the state itself files a case. A conviction under Article 98(f) can result in a prison sentence of up to five years, and/or a fine … According to the US Commission on International Religious Freedom (USCIRF), there were 15 known ongoing cases and investigations under Article 98(f) in 2017, an increase from 2016 ... The majority of those sentenced to prison terms … have reportedly been non-Muslims ... DFAT understands that those accused of blasphemy rarely have an adequate defence counsel. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases.[3]
[3] DFAT Country Information Report: Egypt, 17 June 2019, at paragraphs 3.12-16
[The applicant] said the incident happened in February 2017, which would have been around four months before he last came to Australia. Given that he had not evidently acquired a reputation for “insulting Islam” throughout his whole lifetime until, purportedly, a few weeks before he left Egypt, I put to him that his behaviour in the alleged conversation with his “Salafist” manager might seem at least to have been out of character. In reply, he said [Ms A’s] supporters came to his workplace and spoke to his manager who was a “Salafist.”
I asked [the applicant] how it came to pass that he and this “Salafist” manager exchanged insults against the religion of each other. In reply, [the applicant] appeared to change or modify earlier evidence: he said, “I did not insult [Islam]; I just defended my own religion.” This response struck me as being inconsistent with what [the applicant] had claimed orally and in writing on a number of previous occasions. [The applicant] then said he told his manager, “I’m just telling you what’s in your book [the Quran].” [The applicant] thus appeared to acknowledge at the hearing his earlier claims to the effect that he had spoken of Islam in a critical way, and had thus done more than merely “defend” Christianity. His apparent confusion and revision here brought into question whether the conversation described had actually taken place.
In light of [the applicant] having claimed that he “received a clear threat that [his] insult to Islam [would] cost [him his] life and [cause his] death,” I asked him whether, in the five or more years since the ‘clear threat” had been made, there was any supporting evidence of its having been made or pursued. In reply, he said, “These people are fanatics; they just take the law into their own hands.” I asked [the applicant] to confirm whether he had heard nothing more arising from these threats since early 2017 and he said he moved houses twice before coming to Australia. I asked him if there was any evidence, say, of a fatwa issued against him; I was interested in whether he might even have been charged after a complaint against him. In response, [the applicant] said, “I won’t be able to live in [District 1] because of my health.” He said that for health reasons he would not be able to withstand any kind of harassment. He said that he and [his wife] used to live in one of [number] flats in in [District 1] and that most of the other occupants were “fanatic” Muslims. I asked him what he meant by “fanatic,” inviting him whether to specify whether or not these people were violent. In reply, he said they belonged to a sect. I asked him if he knew which sect and he said, “I’m not sure. Some of them were radical … some Salafist.”
I put to [the applicant] that he would not need to live in the same apartment building in [District 1], or for that matter [District 2], if he returned to Egypt, and he said that if he returns to Egypt the Salafists will tell a mullah he has returned and the mullah will then issue a fatwa against him for having defamed Islam. On this evidence, [the applicant] was indicating that there had not yet been any fatwa issued. I understand that that in itself does not mean that nobody in Egypt harbours a grudge against him for having insulted Islam, but it seemed odd that if a fatwa were generally on the cards, as it were, none had yet been issued, not over five years and especially not closer to the time the insult was purported to have been inferred by [the applicant’s] “Salafist” manager. In claimed circumstances, in which [the applicant] saw claiming that this would in future be brought to the attention of a mullah, it seemed far-fetched that word had got around to [Ms A’s] supporters and some hostile Salafists but had not yet evidently, in all of this time, been acted upon by any mullah.
When I put to [the applicant] that five years seemed potentially significant that no such action had been taken by a mullah in the five or more years to now, he said, “They don’t forget. They take revenge.
I asked [the applicant] if, summing up, the harm he feared was from [Ms A’s] supporters both directly and indirectly, through his former manager and others incensed by having insulted Islam, he said, “yes.” I note also the claims made in paragraph 72 of [the applicant’s] about suffering long-term discrimination and humiliation at work from his colleagues and “Salafist” manager who, he said, attempted over time to get him to convert to Islam even as he was disparaging and bullying him: these claims, at least, are about past cumulative persecution for reasons of being a Christian.
The adviser made some closing comments, including a reminder about [the applicant] having been unsuccessful in his endeavour to have his employer pay him money due to him over the period of his work up to February 2017. The adviser also reminded me to consider that the episode involving [the applicant] and his wife having been pushed to the ground by people passing or intercepting them on a motorbike and the incident in the apartment block lift had happened in two quite separate locations; she indicated here that [the applicant’s] alleged persecutors were adept at locating him across distances. She also said that, in the event of “religion” not being found to be “the essential and significant factor”[4] in the harm [the applicant] claims to fear, then it would nevertheless still be appropriate to consider the harm feared against complementary protection criteria of “cruel or inhuman treatment or punishment” and/or “degrading treatment or punishment.” This gave rise, in my mind, to an implied claim to the effect that [the applicant] feared being “arbitrarily deprived of his … life.”
[4] as per s.5J(4)(a) of the Act
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[8]
[7] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[8] Sun v MIBP [2016] FCAFC 52 at [69].
On the evidence before me, I accept that [the applicant], formerly of Bani Souaf but more recently of Cairo, has a nephew in Bani Souaf called [Nephew A]. I accept as fact [the applicant’s] description of his and [Nephew A’s] immediate family, including evidence about he and [Nephew A] forming a paternal-filial bond over and since the death of [the applicant’s] brother.
I accept [the applicant’s] account of [Ms A] leaving her marriage to [Nephew A], converting to Islam, briefly reconciling with [Nephew A] and later leaving him again, taking their two children, all three formally converting to Islam over time. I accept that [Nephew A] sought solace from [the applicant] and also some help around late 2015 and early 2016, particularly when he and [Ms A] were briefly reconciled. I accept that he put them up in his home in [District 1] in Cairo until they moved on to stay in [Town 3 variant], or [a specified region]. I can accept that [the applicant’s] help at that time may have attracted enmity towards him from persons supporting [Ms A’s] previous, and further, estrangement from [Nephew A]. Whether I accept that this led to threats upon his wellbeing, and even his life, is a separate matter.
Before continuing to consider the claims about how the conflict between [Nephew A] and [Ms A] drew [the applicant] himself into danger, I consider it appropriate, first, to make findings regarding the harm [the applicant] claims to fear arising from the alleged argument with his supervisor at his former workplace in Cairo.
To recap, [the applicant] claims that his perceived role in helping [Nephew A], to the frustration of [Ms A’s] family and its supporters, became known in September 2016 to his colleagues workplace manager in Cairo when a suspected Salafist walked into the worksite and shouted complaints about his role in the [Ms A] matter. This is what he claimed in paragraphs 69 to 83 of his original statutory declaration. Importantly he said that the treatment he received from his colleagues and the “Salafist” manager took a significant turn to the bad at and from this time in September 2016. He claimed that just after the same stranger visited his workplace in February 2017, his Salafist manager even began to threaten him verbally whereupon he and his manager fell into a bitter exchange of insults against each other’s religion. In the context of threats and harassment having forced [the applicant] to move houses from [District 1] to [District 2] district in June 2016, the substantial downturn in how he was treated at work must logically have told him that those harassing, harming and threatening further to harm him had caught up with him; however, he not only stayed on in his job, continuing to reside in [District 2] but decided not even to try to leave Egypt because, incongruously, he did not think the cumulative situation was serious enough. I have concern about this incongruity and give it some cumulative weight.
Meanwhile, [the applicant’s] description of the crucial argument he had with his “Salafist” manager has been inconsistent over time: he has said variously that he did, and did not insult Islam. I give some cumulative weight to this discrepancy.
In addition, there is no evidence that the “Salafist” manager, or anyone else ever acted upon any of the verbal threats the manager supposedly made after the argument. [The applicant] indicates that this was because he was able to give them the slip twice before leaving Egypt altogether but, even so, there is no evidence of the matter having gone anywhere, say before a mullah or to the authorities. I find this discrepant in the claimed circumstances and I give some cumulative weight to the discrepancy.
Furthermore, [the applicant] and his wife came to no serious harm at their home in [District 2] throughout the rest of February 2017; nor did they come to any after they moved to nearby [Town 1] and then back in April 2017 to [District 1], also nearby. Although [the applicant] claims that these house moves were unsuccessful attempts to avoid being located by his adversaries, who continued to harass him, it seems illogical for a person in his claimed circumstances to make such small moves in and around the same district, knowing that those adversaries could find him anywhere, even in Alexandria, because of their being so organised. I give some cumulative weight to this concern.
Finally, I was concerned at [the applicant’s] apparent suggestion that a fatwa has yet to be issued, dependent on his having returned to Egypt before such issuance. This claim struck me as being incongruous with the alleged eagerness of [Ms A’s] supporters to harm [the applicant] seriously, and even kill him, over five years ago. I find this claim illogical and improvised.
On the evidence before me, considering the cumulative weight of concerns I have described above, I am not satisfied that the argument with the manager at [the applicant’s] workplace even happened. In light of deficiencies in [the applicant’s] evidence, I do not accept that his manager was a Salafist or that he, [the applicant], was mistreated over any period at his workplace. I am all the more confident in this finding having regard to [the applicant] telling me he was unsure about what “sect” his hostile neighbours followed, and then appearing to suppose that they were Salafists. Having considered all this evidence, I do not accept that a Salafist stranger ever came to his workplace and initiated hostile behaviour towards him there.
Furthermore, on the evidence I don’t accept [the applicant’s] claim about his neighbours in Cairo being Salafists, let alone Salafists connected to or influenced by [Ms A’s] supporters. I give some weight in this conclusion to [the applicant] having equivocated over that sect he was accusing his neighbours of belonging to, in his oral evidence at the hearing. Accordingly, I find that I cannot rely on [the applicant’s] claims about ongoing harassment from neighbours and persons working in his and his wife’s apartment block from late 2015 through 2017. I give no weight to the claim about the lift being deliberately stopped, or to the claims about rubbish being left at the front door or to claims about [the applicant’s] car having been vandalised.
I do not accept on the evidence before me that [the applicant] was denied wages or dues for any potentially relevant or significant reason in this matter. I give more weight in this matter to [the applicant] having accessed his pension, even if, as claimed, he has authorised that it be remitted by [Nephew A] to help him with upkeep and legal costs.
Because I find all the claims in this matter about the Salafist boss, the religious argument and the revenge threats it generated, to be unreliable, I do not accept that [the applicant] has faced ongoing, let alone intensifying harassment over the help he gave [Nephew A] in 2015-16. I can accept that there were calls to find out where they were, even couched at the time in coercive language, but I do not accept on the evidence before me that this pressure from [Nephew A’s] in-laws continued over time.
I do not accept on the evidence before me that [Nephew A] changed houses so as to hide from anyone, let alone when he was already engaged in litigation that would require him to provide truthful information about his domicile. I do accept, however, the information given orally at the hearing about [Nephew A] selling consecutive homes to help pay his legal costs. I do not accept on the evidence before me that [Nephew A] took consecutive jobs [in occupation 2] because being “mobile” seemed safer than working in a stationary location. Given the kind of adversaries described by [the applicant] in this case, people who wanted to harm [Nephew A] at work could still easily have done so. Similarly, I do not accept that [Nephew A] has now moved far away to avoid being persecuted: he only lives [nearby], still in the environs of Bani Souaf where he still goes regularly to work. I do not accept that [Nephew A] is under any significant extrajudicial pressure, let alone death threats or attempts to harm him physically. This makes it harder to conceive that [Nephew A’s] problems extend to a real chance or risk of potentially significant harm of [the applicant] himself.
I find on the evidence before me that [the applicant] probably retired from work in February 2017, effective [in] March 2017: he was coming up for [age] years. I find that around that time he and his wife [name] let go of their apartment in [District 2] and stayed temporarily with relatives at two other locations not far from their former residence in [District 2] whilst organising their paperwork for a year-long visit to Australia. It is likely that their purpose in coming to Australia was to see and spend time with their sons and grandchildren, in whose day-to-day lives [the applicant], for one, became very closely involved. I find on the evidence before me that in time they did not want to leave their family here and that they lodged their PV application as a means of staying on.
[The applicant’s] implied claims about being persecuted merely for reasons of being a Christian are alluded to in paragraphs 71 to 79 of his original statutory declaration, in which he indicated that his boss was habitually trying to persuade him to convert to Islam, at first gently and then threateningly, and that he was only retained at the firm at all because of his unique skills. As I have already found the bulk of [the applicant’s] substantive claims about problems in his workplace to be unreliable, the evidence of discrimination for reasons of religion is considerably weak. Since [the applicant] has provided no other reliable evidence of mistreatment merely on the basis of being a Christian (the bulk of his evidence relating as it does to what he did or refused to stop doing with regard to [Nephew A] and [Ms A]), I am not satisfied on the evidence before me that he faces a real chance of being persecuted separately or cumulatively for reasons of being a Christian per se.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted separately or cumulatively in Egypt in the reasonably foreseeable future for any reason cited in s.5J(1)(a). His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment,” and “torture,” are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Egypt, I find that Egypt is the receiving country in this matter.
[The applicant’s] claims to complementary protection are essentially the same as his refugee claims. Those claims have essentially failed to due to a lack of credibility and their being unable to meet the “real chance” test. In view of this, and in view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant’s] refugee claims can no more succeed as complementary protection claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Egypt, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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. He is therefore also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa. Accordingly, he does not satisfy the criterion in s.36(2).
It follows that [the applicant’s wife], who has no claims of her own, is herself unable to meet s.36(2)(b) or (c) and therefore fails to meet s.36(2).
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
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 3223

15 August 2022

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