1831966 (Refugee)

1831966 (Refugee) [2022] AATA 4123 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER: 1831966

COUNTRY OF REFERENCE: Egypt
MEMBER:Rodger Shanahan
DATE:13 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2022 at 3:50pm
CATCHWORDS
REFUGEE – protection visa – Egypt – imputed political opinion – anti-government – deserting ship – perceived Muslim Brotherhood supporter – returned ship jumper – employment – threats to family – inadequate food and medicine – unsafe working conditions – credibility issues – returned asylum seekers – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 February 2018.
The applicant appeared before the Tribunal on 10 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. The representative attended the Tribunal hearing.
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 claim as part of his protection visa application:
I seek protection Australia on the basis of my imputed political opinion and my fear that I would
be targeted and harmed for deserting the Ship which is a government controlled Company. The
Chairman and some of the directors are either serving or ex-military officers who have close
connection with the Military government in Egypt. Though [Employer 1] is a government related company and have many vessels and generating income, the company treats its crew members in a more inhuman way and they force us to work in a dangerous situation without any safety measures. When we departed the last port in [Country 1], I and other friends started raising voice against the company and told the captain to convey our views to the company. The ship management did not provide enough food, no medical facility, forced to work in dangerous environment and provided less salary. We agitated against that and the Captain got angry and warned that if we do anything against the Ship or the company, the company would take steps to target us and would take revenge against people who revolt against the company. Due to the serious threats, I and other friends remained silent and did not want to raise the issues due to fear. When we landed in NSW, we requested the captain to allow us to go out to see the place and the captain retained our passport and allowed us to go with a stern warning. After we came out of the ship, we discussed within ourselves and decided not to back to Ship and during that time our families called and advised that the company contacted them through the authorities and warned us to go back to work. We feared for our lives and met with an Egyptian and decided to seek immigration assistance. After seeking immigration assistance, we decided to seek protection in Australia.
I fear If I returned to Egypt, I will be particularly targeted and harmed and would be subjected to
torture, degrading, inhuman and cruel treatment for following reasons:
I am a ship deserter and deserted the ship belonged to [Employer 1] which is a government controlled company.
Due to my situation as a Ship deserter I would be considered as an enemy of the
company and causing financial and reputation damage to the company. Due to my desertion and my moral support to the Muslim brotherhood I would be considered as an enemy of the current government.
I fear I would be able to get adequate protection from the Egyptian authorities because they
would perceive me as their enemy. I fear moving to other areas of the country to live safely
would not be an option in my case because I challenged or perceived to be challenging the military government in Egypt.
AAT Hearing
The applicant was asked whether his February 2018 statement was the only one he had made and he agreed it was. He stated when asked that he knew everything that he had put forward in his claims and evidence and it was all true and correct. He had provided one copy of an Australian bank account that the Tribunal had requested and he said this was the only one he had in Australia but the one in Egypt had been closed because it had not been used for five years. His wife had rung the bank and they told him this.
Asked how his family (wife, [and] children) were providing for themselves, he claimed that he worked and sent them money. It was put to him that there didn’t appear to be any movement of money from the account he gave the Tribunal. He said that he transferred it by [a transfer service] or gave money to friends who were going to Egypt. It was put to him that there was no record of withdrawals, and he said that he was paid in cash. He only worked for a few hours, and was asked how he survived and still had money to remit home. He said that he was paid cash and was right on the edge. He was asked for his group certificates post-hearing so the Tribunal could confirm this.
He claimed that if he returned to Egypt, he said that he left the ship and it was owned by the Egyptian government/military and he would become the enemy. He would be put in prison. He had been working for the company since [year] until he came to Australia. He was employed on short-term contracts and was only paid from the time he left home until he returned. His last contract covered the period from August 2017 until [June] 2018. He had other, older contracts but they were at home.
He and some others left the ship and the company was fined as a result. Because of this they would be made an example of on return to Egypt given the government owned the ship. They didn’t have enough food, water or medication or safety equipment. They were just floating in the ocean. They (the company) also rang their families. Asked how long this had gone on for, he claimed that they began after they left [Country 1]. The captain knew Australia followed the law and they were told not to say anything. They threatened his family not to say anything.
They left [Country 1] [number] days before they came to Australia, perhaps more. He was asked if this was around February 2018 but he said it was perhaps just after New Year as they had new year in [Country 1]. They were in [Country 1] for one or two weeks and they stayed at the port. Asked if he had been okay with conditions on board before the [Country 1] trip, he claimed that it wasn’t the best but he still needed to be paid. It became worse.
Asked what he meant specifically by the fact that it got worse, he said that normal was okay. They thought the crew would complain because they were coming to Australia and they were told to stay quiet. He was asked what exactly was wrong and he said no food, drink or medications. Asked how many meals he got per day, he said they got small meals but didn’t get bottled water but got brown water from storage. Asked what he meant by no medications, he said there was no Panadol or pain relief medication. He agreed he didn’t mean that he got no food, he meant the meals were too small, and that the water was unclean. He was asked if people got sick from drinking this water, he claimed that only the captain and his crew got bottled water rather than them.
Asked again if the crew got sick. He said they did but they got over it and there was no medication on the ship for it. He claimed his neighbour passed away from [condition 1] because of the dirty water. It was put to him that the ship’s crew would surely have been struck down quickly of they were made to drink dirty water and was asked if anyone had to be hospitalised because of this, or new crew members had to replace others who were ill because of the illness from dirty water. He said it was all true he swore to God. He was asked to answer the question and he said that many of them got sick but a doctor was never called to treat them. It was strange that the company would take the cheap option of not providing bottled water but risk crew illness by only providing dirty water. He said that when he got sick he asked to see a doctor but he was always told to wait for the next port and never got to see a doctor.
Asked if he had ever mentioned this dirty water claim previously, he said that he hadn’t. This was just one of the problems they faced. Asked if he had previously mentioned the crewman who had died from [condition 1] due to dirty water, he said that he just remembered it when he was asked today. He hadn’t been asked these questions at interview. It was put to him that a crewmate dying from drinking bad water would have been worthy of mentioning in his statement or to DHA without waiting to be asked. It could call into question the truthfulness of his claim. He swore by Allah that this just came across his mind.
Asked if the small meals, dirty water and lack of pain relief was standard during his time with [Employer 1], he said it began the last few years. Asked when, he claimed that from 2014/15 after the revolution. The government put their hands on private sector companies. He was asked to provide a background of [Employer 1’s] governance post-hearing, such as when the company changed hands to the government and its Board and the like. He claimed that he heard from people about this, he didn’t have evidence. They spoke to people – it was put to him that things like the Board of Directors was publicly available so he should be able to provide it.
He was asked if he maintained his employment with the company even though these conditions existed. He said that he had to work to feed his family. It was put to him that there are other companies in Egypt or overseas who he could work for, and he claimed it wasn’t as easy. It was hard to get jobs.
Regarding safety equipment, he claimed that he worked at heights and needed a safety harness and ropes. He had been doing this for 15 years and some of them were rusted and not safe. He had to work and they were threatened. The government threatened them if they mentioned anything about the problems on the ship. Asked to be more specific, he claimed that they hadn’t threatened him, but they threatened his wife after they arrived in [Australian Port 1]. It was put to him that he claimed the government threatened them and he was asked when they had done this prior to him leaving [Country 1]. He said that they went to small ports and anchored off the port so had no chance to complain. They knew Australia was tough so that’s why they received the warnings.
He was asked when they received warnings. He said after they found they were coming to Australia they were warned not to complain to the International Transport Workers’ Federation (ITF) about the food, water or safety gear. He was asked if he had mentioned this previously and he said that he had. He was asked why these issues had never been raised with ITF by anyone if they had been going on for years. He claimed that he didn’t speak English and he had no number for the ITF and didn’t know what to do. It was put to him that he wasn’t the only one who had problems. It was put to him that they could have helped or they could have found someone in ITF to complain to in Arabic.
Asked if he wanted to achieve better safety equipment, food and water when he came to Australia, he claimed that the main reason was to ask for protection because of the threats he received. It was put to him that he had safety equipment that worked but was old and needed replacement, he wanted more food and bottled water, as well as pain killer in the infirmary. It was put to him that these seemed to be minor issues easily solved. It was put to him that it seemed strange that given the small cost the company wouldn’t fix them, or why, if it was an issue for the crew that they didn’t threaten not to sail until the issues were resolved. He was also asked why the company would threaten the sailors over such minor issues as he had outlined. He said that he swore by God this was what happened. He was asked to answer the question given what appeared to be a disproportionate response by the company to minor problems.
He said he bought his own medication for the ship in case anything that happened. When they got into port he claimed they would take the crew’s private medication and out it on the shelves to make it appear they were stocked. Asked if had mentioned this previously as it didn’t appear in his statement, he claimed that he hadn’t but was telling now. They would complain to the captain and he would raise it with the [Employer 1] managers and they would threaten them. Asked why they didn’t threaten not to sail until these issues were sorted out given they would not have cost much to change and the cost of not leaving may have forced [Employer 1’s] hand. He claimed they didn’t know what they could do as they didn’t find out the issues until they left [Country 1]. It was put to him that he had said it had been bad since 2014/15 and was asked why this trip was different.
He claimed that it was the threat they received to their lives and they wanted to stop them from saying anything in Australia. He had been in Australia in [previous years]. Asked if he had contacted any Australian maritime authorities or trade unions to explain what the treatment they received from [Employer 1] was. He was asked why he didn’t as it could have been fixed for other sailors and he was now in a safe country. It sounded like a labour dispute so it was strange he hadn’t gone to a union or maritime organisation. He said he was scared for his life and may have been detained on board. It was put to him that the ship had now sailed and was asked if he had made any complaints to any organisation since the ship had left.
He said he had come off the ship in the company of an officer and they followed the advice of the lawyer as they didn’t speak English. It was put to him that he had been here for over four years and the lawyers could have taken these complaints to the authorities. He said it didn’t come to his mind and he didn’t know what to do.
He agreed that he had claimed his wife had been threatened, nobody else had been. He was anchored off [Australian Port 1] and his wife called him on his mobile and she told him that his wife said that the company had called her and threatened the applicant. Asked what they threatened specifically, she claimed that they were not to say anything about what happened on the ship. He believed the ship’s captain gave the company his name. Asked if he had made a complaint, he said he hadn’t but they all complained about their rights and the captain took these to the company and that’s how the company found out.
He agreed that he wouldn’t have left the ship were it not for the phone call – the threat forced him off. It was put to him that this appeared strange. He was asked why the company would call his wife to threaten him, given this would have likely achieved the opposite effect. If the company thought he was a complainer, then they could simply have put him off at the next port and then not renewed his contract. It was strange that they would take an action that then allegedly forced him to jump ship.
He claimed that if they complained in Australia the company would be heavily penalised and this would cost them financially. He left after his wife received the threat. Asked who they thought he would talk to, he said they thought he would speak to the ITF. It was put to him that he had never made a complaint previously and worked with them since [year], didn’t speak English and said he never called the ITF because he didn’t know their number. He had previously said that he and his other friends remained silent and didn’t want to raise issues. He was asked why he was singled out for a threat given his lack of profile as a potential complainant – the Tribunal could not understand this. He said that he didn’t know. The timing also seemed suspicious that the threatening call came at the same time he was in Australia – the Tribunal was concerned that he had never gone to the Australian authorities because they would have done an investigation and found that the claims he made were not valid. He said he had sworn to tell the truth.

He was asked why he would be considered an enemy of the state for complaining about small portions of food, lack of Panadol and bottled water and old safety equipment on board the ship. He said none of them could raise anything with the government or they would be put in the ground. He was asked what he meant by his claim that he would be considered a supporter of the MB and why they would consider him as such. He said he wasn’t a member but morally supported them – most of his neighbours were members and they would be arrested and taken to prison.
Asked what he meant by moral support and why the government thought he had anything to do with the MB, he claimed that he didn’t know what they thought and wouldn’t until he got to Egypt. It was put to him that he had written moral support of the MB and was asked what he meant – he said that if he came across two people in the street who were fighting and one was being oppressed he would morally support that person.
It was put to him that the government wouldn’t consider him to have anything to do with the MB if he had been employed by the government since [year]. He didn’t appear to exhibit any support for the group, he again said he wasn’t a member. It was put to him that others had jumped ship from an Egyptian ship and there was no country information to indicate they had been mistreated on return and country information also indicated that the government wasn’t interested in returnees (including failed asylum seekers) unless they had an anti-government media profile.
He was asked if he had any country information that ship jumpers suffered serious harm on return to Egypt, and he was asked why he thought that he individually would face serious harm on return to Egypt. He said that those returned are arrested and jailed and none of this is ever revealed to the media. Nobody would ever know what happened to them. It was put to him that there were human rights groups that looked at Egypt, as well as international maritime organisations that looked after seafarer’s rights, yet there is no information about returned ship jumpers being mistreated. He claimed that nobody knew anything about them.
He was asked why he felt he would be harmed, he claimed it was because he put a complaint about them and given information about them and he had jumped ship. It was put to him that the only information he gave were some minor complaints and it was hard to believe that the Egyptian government would kill him because of this. He reiterated the safety equipment was very dangerous, He was asked again why he had never told anyone in Australia about how unsafe the equipment on board the ship was.
He had a lawyer who could represent his concerns and surely he had a duty to his other crewmates on board to make sure the safety equipment was serviceable. He said they had no idea the lawyer could do this – it was put to him he knew the ITF existed and had been here for four years. The inaction raised questions in the Tribunal’s mind about how truthful he was being. He had previously claimed that he would help the person being oppressed in the street and yet he also had done nothing about complaining about poor safety equipment on board the ship. He said no one advised him and he lacked English. It was put to him that his lack of English stopped him from reporting these safety breaches yet it didn’t stop him from seeking protection, opening a bank account, transferring money to Egypt or working. This didn’t make sense. He said he didn’t know who to go to.
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 [Australian Port 1] and applied for protection on 21 March 2018. I have sighted a copy of his passport and accept that Egypt is the applicant’s country of nationality.
The applicant is [an age] year-old male who claimed that if he returned to Egypt he would be considered the enemy because he had deserted from the ship that was owned by the Egyptian government/military and would be 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 (not enough food, drink or medications, rusted/unsafe safety equipment), that he complained about them and was subsequently threatened by the company (through his wife) while he was in Australia.
The applicant claimed that the crew was given dirty water to drink and that this made them sick, he asked to see a doctor but was refused, and that a [neighbour] of his got a [Condition 1] from drinking this water and later died because of it. These are serious claims and yet they were never raised in the applicant’s February 2018 statement accompanying his protection visa application, nor in a 22 October 2018 submission by his adviser.
I do not accept that he failed to mention this previously because it just came into his mind at the hearing. The death of a crewmate from allegedly drinking dirty water on board a ship is a serious issue and it is reasonable to believe that it would have been sufficiently serious to have been mentioned in his statement or to his adviser.
The idea that the captain and officers would drink bottled water while the crew was given dirty water makes no business or ship faring sense either. Bottled water is cheap to buy and the simple economics of risking much of the crew becoming sick from bad water for the sake of saving a small amount of money lacks credibility. I find this claim to have been fabricated.
The same goes for the inadequate food, lack of pain relief medication and outdated/unsafe safety equipment. The idea of an adequate amount of food is a subjective concept given some people will eat more than others, while some prefer different types of food than others. The applicant agreed that he wasn’t claiming that he wasn’t given food, just that the serves were too small. He continued to sign new contracts even though he claimed the situation deteriorated from 2014/15. There is no indication that he made a formal complaint about the food.
The same goes for the safety equipment and pain relief. I do not accept his claim that the company would take individuals’ private medication and place it on the shelves when they got into port to fool auditors. Neither he nor his adviser had ever mentioned this in their written submissions nor did the applicant mention it previously at interview.
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 31 August 2022.
I do not accept that he failed to do because he was scared for his life and may have been detained on board. He has been in Australia for more than four years after the boat left the country and he still never raised a complaint with Australian authorities. I also don’t accept that he failed to report these complaints because he didn’t speak English, he didn’t know the number for the ITF or what to do, and it didn’t come to his mind. The applicant claimed elsewhere in his hearing that he would come to the help of someone who was being oppressed, so this would indicate that he believed he had a duty of care to others. This is inconsistent with his actions since leaving the ship where he would appear to have been happy for his other crewmates to continue to use unsafe equipment and be denied adequate food and medicine.
I also do not accept that his lack of English precluded him from making a complaint to Australian authorities, given he was able to find a legal firm, apply for protection, open a bank account in Australia, transfer money to Egypt and find a job without having English. He could have sought advice from the lawyers about making a complaint via Australian authorities, or the ITF (which would have solved the issue of not knowing the contact details/number for the ITF).
I do not accept that the applicant’s wife received phone calls from the company in Egypt threatening the applicant. To begin with, it is strange why the applicant was singled out as a miscreant. He had been working for the company since [year], and said that while the conditions weren’t the best normally they were okay. His claim that he hadn’t made a personal complaint but was part of a group complaint would indicate that he didn’t have much of a profile as a complainant. There is nothing to indicate that at the time the ship left [Country 1] (when he claimed conditions became worse) that he had either a history of complaining, making the company’s alleged phone calls to his family puzzling to say the least.
He claimed that he believed that the ship’s captain gave his name to the company and that the company then called his wife to threaten the applicant appears to be purely speculative. It also appears unlikely that the captain would single out the names of crew members who raised concerns and give them to the company.
The timing of the alleged phone call also appears suspiciously convenient. The applicant, having no history of making complaints to outside authorities during his (then) [number] years with [Employer 1], and who speaks no English, is targeted by the company as the ship arrives in Australia in the belief that he may report conditions on board to Australian authorities. This very action then causes the applicant to desert and apply for asylum in Australia. If the captain and the company were so concerned that the applicant would complain to Australian authorities it also lacks credibility that the captain would give him shore leave in Australia. The applicant claimed the captain retained his passport, however this would have had no impact on the applicant’s ability to complain to Australian authorities.
Anti-Government Claim
I do not accept that there is a real chance that the applicant would be considered as an enemy of the company/state, or had challenged or would be perceived to have challenged the military government in Egypt because he deserted from a ship belonging to [Employer 1]. The applicant provided the current makeup of the board which indicated [some] (ex-) military members as directors from the [board]. [Details deleted].
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 an enemy of the state or to be challenging, or perceived to be challenging the Egyptian government for jumping ship. Nor is the Tribunal aware of any such information. I note that other Egyptian sailors have deserted ship from [Employer 1] vessels (including in Australia[2]) and there is no indication that they were imputed with anti-government opinion as a result.
MB Claim
[2] [Source 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. He was just as vague when asked at hearing, making an analogy with supporting a person who was being oppressed by someone he was fighting with in the street.
He did not know what the government thought regarding his support for the MB, only that he would find out in Egypt. This kind of speculation is hardly the basis for a well-founded fear, and the fact that the applicant had been employed on a number of short-term contracts by [Employer 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.
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 also do not accept that the applicant would be targeted and harmed because he had caused financial and reputational damage to the company. 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 6 September 2022.
The action would also not constitute ‘systematic and discriminatory conduct’ for the purposes of s 5J(4)(c) given that the reason their contract would be ceased was because they had absented themselves from their place of work without good reason and disrupted the ship’s operation.
The applicant also made a claim in his written submission that he was ‘provided less salary’. This was not mentioned in the adviser’s subsequent submission, nor was it a claim made at hearing. The applicant was asked to provide a copy of his Egyptian bank statement but he claimed that his wife had been advised when she called that the account had been closed down due to inactivity.
It would appear strange that the bank had made no attempt to contact the applicant prior to closing down the account. The Tribunal could have checked the applicant’s contract outlining his contracted payment details and what was put in the bank to determine whether there was any substance to the claim. Regardless, I do not accept that the applicant was provided less salary for the same reasons I have not believed his other claims regarding the conditions on board the ship – his failure to raise them with Australian or other maritime authorities, his willingness to continue to sign short-term contracts and his general lack of credibility regarding his claims.
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.
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 or appropriate safety equipment, that threats were made to him by [Employer 1] via his wife, 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 supporter 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 4123

13 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction