1831964 (Refugee)

1831964 (Refugee) [2022] AATA 4743 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1831964
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:5 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2022 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – Egypt – work disputes on ship regarding conditions – anti-government person as deserted from government ship – imputed Muslim Brotherhood sympathiser due to work disputes – family visited by authorities – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 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 21 January 2018.
The applicant appeared before the Tribunal on 3 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A 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 made the following statement as part of his protection visa application:
[Information deleted].
AAT Hearing
The application was advised that he was requested to provide copies of his bank accounts and he had only provided one statement from [Bank 1]. He was asked if this was all the accounts he had, he said that he had another [Bank 1] account and one at [Bank 2]. He hadn’t provided the others because he said he had only been asked to provide a bank account statement. It was put to him that the email had requested all bank accounts in Australia and Egypt. He said he may have misread it but could provide them. He was told he would be given time to do so.
He said he had no bank account in Egypt and had just provided a pay slip from Egypt as he did not know how to access his Egyptian bank account. He claimed that there was no internet banking in Egypt and one had to call the bank directly. He was advised that he could provide some evidence to support this claim post-hearing as the Tribunal was aware that there was internet banking in the Gulf States from the mid 2000s so it was strange it wasn’t in Egypt. He was asked about the employment contracts he had been advised to provide prior to the hearing, and he advised that the contract he provided the Tribunal was the only he had access to.
He was also asked about a divorce certificate that he had provided to the Tribunal prior to the hearing (none was requested by the Tribunal). He claimed that his family would receive threats all the time and he and his wife agreed to tell the government they were divorced so no one would come and ask her about the applicant. They discussed this around the end of 2018 and were formally divorced from [date] December – he was asked asked how long a request to divorce took to take affect, he said it was about three months. He then said it took about a month for the paperwork to be confirmed – he lodged the paperwork around [date] November. He and his wife had discussed the idea of formally divorcing and he sent the divorce papers to a friend in Egypt who was an agent (essentially exercising power of attorney). He was asked to provide some paperwork that he had sent to his friend that would support the applicant’s claim regarding this chain of events.
The applicant claimed that he still had a relationship with his (ex)-wife. It was put to him that the documents indicated it was an irrevocable divorce. He said it could be reversed. He was paying alimony – he was asked how he did this. He said that he gave money to people in Australia and they gave Egyptian pounds to his wife in Egypt. Asked why he didn’t just transfer the money direct, he said that he didn’t want any direct contact between him and his (ex)-wife. He said that he pays around EP 4-5000 annually. It was put to him that he would have been forced to pay alimony given he initiated the divorce. He claimed that the wife could waive her rights to alimony in a divorce. He said that there was another document that outlined this and he was asked to provide this.
He confirmed that the divorce was just for show, so the government would not hassle his family. He was asked if there was any way the Tribunal could tell the difference between a real and fake divorce, and he said they had children and he forced her to divorce. He was asked if he had ever previously advised anyone in Australia that he was planning on a fake divorce, he said he didn’t as it was personal. Asked if he told the Australian authorities, he claimed that he considered himself still married. It was put to him that in his statement he said that his wife decided to divorce him after speaking to her family – there was no indication that he was part of the discussion. He said the translation may not have conveyed the true meaning. It was put to him that he provided the translation and had signed it as being correct. He reiterated to the Tribunal that his claim was true.
He claimed that if he returned to Egypt, he could be imprisoned without trial by the army or the police because they consider him to be against the government represented by the army and the police. Asked what he meant by being against them, he claimed that he worked on his ship until there were problems. Asked what he meant by being against ‘them’, he said that he was considered that he was an advocate for human rights while he was in Australia. He said that he feared returning to Egypt.
He was asked to be more specific regarding his claim and he said that his father told him that the police told his father that the applicant had been listed on the Muslim Brotherhood (MB). He said that this was the first time he came to Australia, at the anchorage area off [City 1, Australia]. This was in February 2018. He had no other claims.
He claimed that for their trip to Australia from [Country 1] there was no medication on board the ship nor were there any paper navigational charts. He told the captain and said that they should have these items. The applicant was the navigation and medical officer. He has first aid and advanced medical qualifications. Asked what he meant by not enough medications, he said that he had insufficient common medication such as pain killers for back pain.
He was asked if he was legally obliged to have these charts and he said they were. The captain needed to speak to the company and the ships agents to get these. Asked if he spoke to the agents, the applicant said that all correspondence was done by the captain. It was put to him that ship’s agents had to deal with the catering and engineering departments for instance. The captain may make the final decision but the agent had to speak to other members of the crew. He claimed that from 2007 his experience in the company was that the captain did everything. Asked if the captain decided how much food was needed, he said that he was told and passed this on to the agent.
This had not happened before, but it was the captain’s first trip. It was put to him that he should not have left the port without medication or charts (even though they could navigate electronically) and he said that he told this to the captain, but the captain said that Egypt and [Country 1] were in dispute at that time and they could not get any provisions or paper carts or anything from [Country 1]. He was asked why they were allowed to dock if there was a problem. He said they weren’t allowed off the ship. Asked why they didn’t stop at another friendly country [and] grab the charts and medication – he said that the captain said they would stop at [Country 2].
It was put to him that [Country 2] was a long way without medication or charts and was asked why the applicant didn’t tell the captin that they couldn’t leave. He said that he sent a requisition and the captain said they would get to [Country 2] as they had paper charts to [Country 2]. He was asked why he then allowed the ship to leave without medication – he said that the captain said they would get it in [Country 2]. It was put to him that it was strange that as the medical officer he would allow the ship to go to [Country 2] without medication – the ship’s agents could drop the medication to them or they could have stopped on the way. He said that he objected to the decisions. He was asked why the crew would sail without medications or not at least stop en route to get them.
He said it was part of the ship’s captain’s personality. If the captain decided to sail nobody could stop him. The applicant said he spoke to the captain many times to no avail. If they refused to sail until the issues were resolved then they could have forced his or the company’s hand. There were other alternatives to stop en route to [Country 2] rather than just sailing direct from [Country 1] to [Country 2]. It was also strange to think that if there was a dispute with [Country 1], then the Egyptian government could have highlighted in the media [Country 1]’s refusal to provide medicine and charts to the ship.
The applicant said that this was only the captain’s first trip with this company – he had been with [Country 3] ships before and knew the rules. It was hard for the crew to stop him. It was put to him that if he came from [Country 3] ships he would know what [Country 1]’s responsibilities were and could have contacted the Egyptian embassy in [Country 1], or engaged the company. The applicant agreed that this was strange to him as well. He said that the captain kept saying they had charts to [Country 2] and they had some medicine to get to [Country 2]. It was put to him that he had previously said they had no medicine and he claimed that he had said they had a little bit of medicine. His statement was read out to him in which he said they had no medical facilities. He said they had small, basic quantities for emergencies (for one person).
The captain said that there was some communications with the company who said there would be supplies in [Country 2]. It was the applicant’s responsibility to draw the route from [Country 1] to [Country 2]. The captain then told him to draw the route direct to Australia. He told the captain they did not have the charts for this. He said there was one computer with internet and one satellite phone. But the captain was the only one who could use these.
Asked why he didn’t try to contact someone (such as the company) to tell them about the lack of charts/medicine. He claimed that to use the phone he had to tell the captain the number he wished to call. He said that they sailed direct to Australia for 50 days. He contacted a second mate on another ship via VHF on the opposite route to get the charts for approach to Australia. He sent the email of the ship and this person sent him paper charts.
They docked in [City 1, Australia] and the agent came with the supplies (medicine and paper charts). He was asked if the ship’s agents wanted to know why they needed these charts and he said they didn’t. The captain directed him to draw the route with positions from [Country 1] on the new chart – to fabricate the route. Asked why he did this, he said that he had to. He was asked why he had to leave [Country 1] without medicine or charts and then had to fabricate his route, and he said that he had to. It was put to him that if he faked a document for advantage then he may be willing to fake claims. He was asked if he had mentioned faking this route previously, he said he didn’t as nobody asked him. It was put to him that he hadn’t been asked today but offered it – he said he remembered this today and offered it.
He said that he couldn’t take this any more and left. It was put to him that this appeared to be a bad captain given he forced the ship to leave without charts or medicine, lied to him about going to [Country 2] and then forced him to fabricate the route. He agreed that the captain was the problem. He was asked if he reported this to the Australian authorities given the safety breaches the captain was responsible for. He said that he didn’t because in the 50 days of sailing, the captain spoke to the company unknown to the applicant. In the anchorage area in [City 1, Australia], the applicant received a call from his father who said the company HR employee contacted his father and accused the applicant of being a troublemaker on board.
When they had network coverage his father called and told him not to cause trouble. He decided to listen to what the captain said and that was it. Normally if there was a problem with the applicant, the captain should call him direct through the captain. He was surprised when his father called. Asked what he was accused of doing, he said that the captain called the company and the company called the applicant’s father and he called the applicant and told him to stop making trouble. The applicant said that he was never specific about what trouble the applicant was accused of doing. He was asked why the father never asked the company what trouble he was accused of doing, and he said that this lack of specificity was what happened. He decided at this time to leave.
He didn’t talk to the captain about this and was puzzled why his father was called. This was not normal. It was put to him that his account was hard to believe. He said that they then pulled into port and after he was forced to fake the route and his family was involved, he became afraid. He was asked why he left if, as an officer, he was responsible for the sailors on board, he said that the company and the captain were responsible for everything on the ship. He left the ship but Customs said he couldn’t leave on his own. He had to go with others – other people then came with their own issues. Three came down at the same time as him and he knew they had issues and they discussed that they all got phone calls. This was the first time he knew of this. Asked if it was coincidental that all of them ended up at the dock at the same time and learnt that they had all received phone calls. It was put to him that this appeared very coincidental and he agreed.
They took a train to Sydney as they were afraid and wanted to go away from the ship as far as possible. They met someone at [a] station and he asked people where to go to make an application. Together they went to [Suburb 1] where there were many Arabic speakers. Someone they met (who didn’t speak Arabic) sent them to [Suburb 1] and they met an Arabic speaker. He applied for protection two-three days later.
Asked if he had ever gone to the Australian maritime authorities to report the captain to the authorities. He said that he didn’t because six months prior to this there was a famous instance where crew members were returned from Romania after seeking to speak to the (International Transport Federation). The Romanian police returned the two crew to the ship and the ship returned them to Egypt. Asked if he had evidence of this he said that he didn’t but they all knew the story.
It was put to him that he had been here for four years and the ship was long gone. From what he said the captain appeared dangerous, and was asked whether he had contacted the Australian authorities, he said they gave their case to their lawyer. Asked if he asked the lawyer to approach the authorities, he said that he hadn’t. Asked why he hadn’t given he was here for four and a half years – he said nobody told him what to do. It was put to him that he was third-in-charge of the ship so he shouldn’t need someone to tell him what to do.
This made it hard to believe this claim. He said it was a strange country and didn’t know what to do – asked what he had done to find out, he claimed that he gave all his things to the lawyer. He didn’t ask the lawyer to approach anyone. He said that Egypt hadn’t signed the Convention – it was put to him that it was illegal under Australian law to do what he did. He agreed it was illegal everywhere. He said that he didn’t know what to do to report this. It was put to him that he had had four and a half years to find out how to report it.

Asked how often his family had been contacted and what they said. He said there was the time they called his father when the applicant was at anchorage, and then after he left the company again called his father. He didn’t know the applicant had left the ship at that stage. They only called his father. After this, three people attended his apartment where his wife and children lived. They were in the same building as his father. They asked about him – this occurred just before his DHA interview. They asked where he was, why he left and what he had said to the Australian government. In August 2021 two people came to his father’s house and asked the same things, or whether he had any connection with terrorist groups or the MB.
Asked what he meant about being put on the list of MB members, he claimed that this gave a fabricated reason for him to be arrested. He was asked and said that there was no arrest warrant out for him. He confirmed that his wife only received the one visit, a month before the DHA interview and once they realised they were divorced they hadn’t visited.
He was told about s 424AA and it was put to him the Tribunal was confused about the divorce which was effective from 1 December 2018 and he put the paperwork in one month prior but had been talking about it for a few months prior to the paperwork being issued. This would take the talk about divorce to the end of August or September. He said this was not correct as the discussion occurred before that. He agreed this was three months before submitting the paperwork.
It was also put to him under s 424AA that the DHA interview was the middle of September which meant that they were talking about this tactical divorce to ensure that her harassment ceased, before she had even been visited by Egyptian authorities. The DHA interview was 16 October 2018, six weeks before his divorce and he spoke about his wife in the present tense, making no mention of her being hassled or of them discussing a divorce. There was a concern that he wasn’t being truthful about the nature of his divorce. On top of this, in his July statement he claimed that his wife decided to divorce him after speaking to her family about the situation, which was also different to how he described what occurred.
He asked whether the Tribunal was talking about the formal divorce document and he would provide the other one waiving alimony. She was in the same building as her father so they needed to find a way to protect her from interest from Egyptian authorities who may go to her father. It was put to him that it was surprising she waived the mahr as she would have needed it with him in Australia. In Islamic law women in some countries can initiate divorce by waiving the mahr so perhaps she had initiated the divorce rather than it being consensual. He claimed that she waived the delayed mahr and what he was paying her at the moment was more than what she would have had from the mahr.
Also under s 424AA it was put to him that he said that they couldn’t get medicines and charts from [Country 1] because of the political dispute between [Country 1] and Egypt, yet there was no mention of this in his statement or in his DHA interview that the lack of the charts or medicine was because of the bilateral dispute – he said that the company refused and there was no agent in [Country 1] for the medicine/charts. This was inconsistent with what he had told DHA and what he claimed at hearing.
He said that the claims are the same but this time he had added more information. The result was the same. He was told that he would be given time post-hearing to provide any country information that indicated the [Country 1] government refused such assistance to Egyptian-flagged ships over the period in question.
Also under s 424AA it was put to him that there had been a previous incident where crew from a ship from the same company in [City 2, Australia] claimed to have had problems with the on-board conditions and the Australian maritime authorities became involved. Four crew returned to Egypt on flights paid by the company. Another seven left on the way to the airport and six of these applied for visas subsequently. This would indicate that it was known by ship’s crew that Australian maritime authorities can be engaged, and that crew members felt free to return to Egypt. There was no indication that anything untoward had happened to them and country information indicated that the Egyptian authorities didn’t really pay attention to failed asylum seekers on return to Egypt. This may indicate that having a labour dispute didn’t appear to impute one with MB membership and that there were no problems for people like him to return.
He claimed this occurred in 2013 so there was a completely different government in power. The Tribunal said that the information regarding attitude to returnees was from 2019. He said there was no information whether the returnees were treated well or badly. The military are in power now, not then. Regarding being safe to return, there is no proof. The people who said that could be from the government. It was put to him that there were 90 million people in Egypt so the government could not surveil everyone. There were also advocacy groups, including international labour groups who could highlight problems with workers.
He claimed that if it was just a labour issue he wouldn’t have worried as it happened all the time. This was different when his father received a threatening call. If he wanted to improve his economic situation he could simply have gone to Canada or France as he had been there before he was married. He claimed that his salary didn’t compare with ILO convention but he was okay with that as he made a good living. He was not in Australia to improve his economic situation.
He was asked what the aim of ringing up his relatives was. He would no longer be an employee and had just jumped ship – there seemed to be no sense in speaking to his father. He said they wanted to get the father to stop the applicant from speaking to Australian authorities. He said perhaps the government was involved after he was out of the company. It was put to him that he had no profile, and the alleged visit to his family came just before his DHA interview which appeared to be coincidental timing. He claimed that the view from the Tribunal was different to what actually occurred. The captain on their ship had destroyed the applicant’s life. He was always away from politics in Egypt.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia [in] February 2018 as the member of a ship’s crew on a maritime crew visa, jumped ship in [City 1, Australia] and applied for protection on 21 February 2018. I have sighted a copy of his passport and accept that Egypt is the applicant’s country of nationality.
The applicant is a [age] year-old male who claimed that if he returned to Egypt he would be arrested, detained and tortured because he had deserted from the ship that was owned by the Egyptian government/military and would be considered an anti-government person put in prison.
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.
For a range of reasons 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 his claims in order to be granted a protection visa.
Disputes on Board Ship
Whilst the Tribunal accepts that there can be labour disputes on board ships regarding working conditions, I do not accept that the applicant had the type of conditions imposed on him that he claimed (insufficient food, no safety measures or medical facilities, no paper navigational charts), that they demanded more salary, or that the company contacted his father and warned him to tell his son (the applicant) not to be a troublemaker.
I do not accept that the ship was forced to sail from [Country 1] without paper charts or medicine because of a political dispute between the two countries at the time. He never mentioned this in his statement nor during his interview with DHA. Indeed, he said at his interview that the company refused to provide them and there was no agent in [Country 1] for these items. I do not accept that he had simply added more information during the interview as the reasons he gave for the absence of the medicine/charts were quite different from his interview to his hearing.
He was also asked to provide any country information that indicated that there was a dispute between [Country 1] and Egypt during which [Country 1] refused such provisioning assistance to Egyptian-flagged ships. The Tribunal is aware that Egypt sided with the Gulf states over the 2017 diplomatic dispute with [Country 1] and severed diplomatic relations as a result, however there is no country information available to the Tribunal, nor was any provided by the applicant, that indicated such assistance was refused by the [Country 1]government. It also appears strange that the [Country 1] government would allow an Egyptian-flagged ship to dock but not provision it with medicine or navigational charts. Nor if such a move was made, that the issue wasn’t aired in public given the adverse publicity such a move would have had for [Country 1].
The claim made by the applicant regarding the captain’s subsequent actions raises further concerns in the Tribunal’s mind as to the truthfulness of the applicant’s claim. Even if there was a dispute that meant medicine and charts were not made available, such items could have been picked up in Abu Dhabi, Dubai or Muscat en route to [Country 2]. I do not accept that the captain communicated with the company and said the supplies would be in [Country 2]. The captain was, according to the applicant, experienced and had worked on [Country 3] ships previously. Given this, he would be used to and understanding of maritime safety protocols, so it lacks credibility that he would allow the ship to sail without the required charts or medicine, or wait to [Country 2] to do so when there were viable alternate ports en route in which to re-stock.
The applicant was also inconsistent in his description of the situation regarding medications on board. In his written statement he claimed that ‘The company forced us to work without any…medical facilities’. At the start of the hearing he claimed that there was no medication on board but later when questioned he claimed that there was a small amount of medication, but only enough for one person. Given he was the first-aid/medications officer on board, his changing narrative regarding the medical situation on board raises additional concerns in the Tribunal’s mind as to the truthfulness of his claims.
I also do not accept that the applicant was forced by the captain to fabricate written sailing routes to Australia on the paper navigation charts once they received them in Australia. This is a serious accusation and yet it was never mentioned previously in either of his two written statements, nor in his DHA interview. I do not accept that he failed to mention it previously because he remembered to put it forward today and hadn’t been asked previously. He was an officer on the ship and the accusation against his captain is an extremely serious one, so it lacks credibility that he would remember to mention small food portions and inadequate medications, but neglect to mention being forced by the captain to draw a fabricated sailing route on charts obtained only when they were in Australian waters.
I also do not accept that they demanded more salary. The claim was only made in his initial statement but not elsewhere. The applicant signed a contract for a certain salary and he noted it didn’t compare with ILO conventions (no evidence was provided to support this claim), although he also stated he was okay with the amount and made a good living. On the face of it then, the applicant signed a contract for pay that he was okay with and provided him with a good living.
My finding that his claims regarding conditions on board the ship have been fabricated is strengthened by the fact that the applicant has never approached any Australian union or maritime organisation such as the Australian Maritime Safety Authority (AMSA) to raise any concerns about the situation on board the ship once it was docked at an Australian port, given AMSA has the right to inspect ships to ensure they comply with relevant Australian domestic laws and international conventions.[1]
[1] What is port State control? (amsa.gov.au), accessed 14 September 2022.
I do not accept that he failed to do because of an incident in Romania six months prior when Romanian police returned two Egyptian sailors to the ship who had sought protection and these people were returned to Egypt. Although he claimed the event was ‘famous’ and they all knew about it, he could provide no evidence to support his claim that such an event occurred, nor is the Tribunal aware of any such incident occurring.
Regardless, the applicant was in Australia rather than Romania and had been here for over four years and yet he had not attempted to highlight the allegedly illegal actions of the ship’s captain. I do not accept that the applicant didn’t know what to do, nobody told him what to do, or that he gave all his things to his lawyer. The applicant was an officer on the ship and third-in-command so it is reasonable to believe that he did not need to have to be told to report such egregious safety breaches to the authorities. He had also employed a migration lawyer and could easily have sought legal advice as to who to contact to express his concerns, yet he failed to do so.
The applicant provided additional reasons in a post-hearing submission. I do not accept that by submitting his claim to DHA (which includes ABF) he had submitted the appropriate information to Australian authorities. This logic is hard to follow, however as noted above AMSA is the relevant authority to raise such issues with. As the third-in-charge of the merchant ship and who speaks English, it is reasonable to expect him to have the knowledge and wherewithal to lodge complaints (or request such complaints be forwarded) to the appropriate authority in a timely manner, and not simply expect claims made in a protection visa application to find their way to the appropriate Australian maritime authorities.
He was also legally represented so could have asked for legal advice on this specific issue. For the same reasons (Third-in-charge, English speaker, legally represented) I do not accept that he thought he couldn’t raise the issue with the International Transport Workers federation (ITF) because he had left the ship. He did not explain how he formed this opinion, nor what he did to find out whether this was the case.
Because I do not accept the applicant’s claims regarding the conditions on board the ship, I also do not accept that the applicant’s father received a call from [Company 1] advising him that his son (the applicant) was a troublemaker and that he should stop. It makes no sense that [Company 1] would call his father with such a vague ‘threat’. The applicant had been with [Company 1] since 2007, and done everything asked of him by the captain (including allegedly fabricating the sailing route) so it is strange that they would call his father. If they believed him to be a troublemaker, then it is reasonable to believe that the captain would have warned the applicant himself and/or threatened him with not renewing his short-term contract.
I also have concerns about the truthfulness of his claim regarding leaving the ship. He claimed that he planned to leave alone but was stopped by Customs and told that he couldn’t leave the port on his own. At this point three other crewmen came onto the dock from the ship and, after discussing issues on the ship he found that they had all received threatening phone calls as well. The coincidental timing of four people being on the dock at the same time who had all received threatening phone calls and then deciding to come to Sydney and apply for protection seems so implausible that the Tribunal does not accept that this occurred.
Because I do not accept the applicant’s claims regarding the conditions on the ship or the threatening phone calls, I also do not accept that the applicant’s (ex)-wife was visited by Egyptian police and questioned about the applicant, or that his father was visited in August 2021 by police who inquired about the applicant. It also appears rather unusual that the Egyptian authorities would have any interest in a simple ship-jumper with no political profile domestically or internationally, more than three years after he left the ship.
While I accept that the applicant is divorced from his wife, I do not accept that the applicant instituted the divorce with his wife after she had been visited by the police, in order to forestall any future interest in her by the authorities, and that the divorce was real but done for tactical purposes. This claim is inconsistent with the timelines revealed in his statements and legal documents. In his statement of July 2022 for example, he claimed that at the end of 2018 police officers visited his ex-wife and questioned her about the applicant. She then got scared, consulted with her family and decided to divorce the applicant. I do not accept that this was a faulty translation as the applicant had provided the document and signed it. I also note that the timing of the visit was inconsistent with his claim at hearing that the visit occurred one month before his DHA interview, which would have made the visit August 2018.
At the hearing he claimed that it was a ‘fake’ divorce done by mutual consent to avoid having the authorities continue to question his wife about the applicant. This discussion with his wife took place a few months before he submitted the divorce paperwork (which was put in at the end of October/start of November). This meant that the mutual discussions about a divorce would have taken place from around August 2018. Post-hearing the applicant provided some documents (including a power of attorney for someone to progress his divorce in Egypt) that was signed [in] August 2018.
This meant that he was actively considering divorce from August 2018. He made no mention of this in his September 2018 DHA interview, nor of his wife being questioned by authorities. Therefore his divorce was being contemplated well before she was allegedly questioned by the police and the divorce perhaps even finalised around the time of the alleged questioning. These inconsistencies indicate that the alleged questioning by the police could not have been the catalyst for a discussion about a tactical divorce, and adds to the Tribunal’s negative assessment of the applicant’s credibility.
If the captain and the company were so concerned that the applicant would complain to Australian authorities that they made threatening phone calls to his family while they were in [City 1, Australia], it also lacks credibility that the captain would subsequently give him shore leave in Sydney. Simply keeping the person’s passport could not have stopped the applicant from informing Australian authorities anonymously, or complaining publicly and applying for protection.
Anti-Government Claim
I do not accept that there is a real chance that the applicant would be considered as an anti-government person because he deserted from a ship belonging to the government. Although not necessarily a determinative issue in the applicant’s anti-government claim, I note that the applicant provided no country information that would support the claim that he would be considered anti-government or the government would take revenge for jumping ship. Nor is the Tribunal aware of any such information.

I note that other Egyptian sailors have deserted ship from [Company 1] vessels (including in Australia[2]) and there is no indication that they were imputed with anti-government opinion as a result. It is reasonable to believe that if there were issues with their treatment on return it would have been highlighted by their families or others to advocacy groups in or outside Egypt. When told that the incident occurred in 2013 he claimed that this was under a different government; however the incident was in September 2013 by which time the Morsi government had been removed from office by the Egyptian military.
MB Claim
[2][Deleted].
I do not accept that there is a real chance that the applicant will face serious harm because he would be considered an enemy of the government because of his desertion and moral support for the Muslim Brotherhood (MB). His protection visa statement did not elaborate what he meant by ‘moral support’ for the MB. Nor do I accept that the police had asked the applicant’s father whether the applicant had any connection with the MB or that he would be put on a MB list as an excuse to arrest him.
He admitted there was no arrest warrant issued for him, and the fact that the applicant had been employed on a number of short-term contracts as an officer by [Company 1] after the fall of the Morsi government would indicate that there was no belief on the part of the authorities that he had any MB proclivities. Given this, as well as the concerns already noted regarding the applicant’s credibility as a witness, I do not give any weight to the speculation by the applicant regarding the authorities imputing him with MB loyalties.
Other Issues
I note that other members of the crew also jumped ship and made similar claims as the applicant with respect to family members receiving threatening phone calls once they arrived in Australia, as well as complaints regarding the amount of food and medicine on board. I have considered these but am not satisfied that this internal corroboration is sufficient to overcome the serious concerns that I have over the credibility of the applicant’s own claims.
I accept that the company would most likely cease his contract and not re-employ him given he deserted the ship. This would not amount to serious harm however, given that he would not be denied the ability to earn a livelihood given there are other companies that he could work for in Egypt or overseas. Country information indicates that some are forecasting a labour shortage of seafarers in the near future owing to the pandemic.[3]
[3] The Next Shipping Crisis: A Maritime Labor Shortage - Bloomberg, accessed 14 September 2022.
The action would also not constitute ‘systematic and discriminatory conduct’ for the purposes of s 5J(4)(c) given that the reason his contract would be ceased was because he had absented himself from his place of work without good reason and disrupted the ship’s operation.
Although he has made no specific claim with regard to returning to Egypt after a long absence, I do not accept that there is a real chance that the applicant will face serious harm because of this. Country information indicates that people who return after several years’ absence will not face adverse attention on their return because of their absence – failed asylum seekers will similarly also not face adverse attention.[4]
[4] DFAT Country Information Report – Egypt, 17 June 2019, p 45.
I have taken into account a range of country information provided by the applicant’s adviser prior to the hearing but lend it no weight. It is general in nature, some of it has pen marks next to particular paragraphs which the Tribunal takes is meant to draw the Tribunal’s attention. None of the information appears to relate to the applicant’s particular circumstances, nor does the submission make an effort to explain the particular relevance of highlighted sections.
Because I have not accepted the claims made by the applicant to be true and have found that he will be of no interest to the Egyptian authorities on return, it follows that I do not accept that the applicant would face arrest, detention, torture, arrest, degrading and inhuman treatment or possible death, be considered as a traitor or enemy of the state. Nor do I accept that he would be imprisoned without trial by the army or police because he was considered an advocate for human rights in Australia. He provided no evidence that he was a human rights advocate whilst in Australia, and when asked to expand on this claim he simply said that he was told by his father that the police had placed him on the MB list – I have already rejected his claim that he would be placed on a MB list by the Egyptian authorities.
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 reason set out in 5J(1)(a) either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever suffered from a lack of food, medicine/medical facilities or a lack of any safety measures on board ship, that threats were made to him by [Company 1] via his father, that he would be imputed with an anti-government political opinion for jumping ship, be unable to get a job on return to Egypt or that he will be imputed with being a member of the MB, 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 4743

5 October 2022

Key Legal Topics

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Immigration

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Statutory Interpretation

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Procedural Fairness

Statutory Construction

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