1835719 (Refugee) - [2021] AATA 3073

1835719 (Refugee) [2021] AATA 3073 (2 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835719
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Kate Millar
DATE:2 July 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 July 2021 at 3:43pm
CATCHWORDS

REFUGEE – Protection visa – Egypt – Coptic Christians living in Egypt – particular social group – a woman who does not wear a headscarf – applicants could obtain protection from the authorities – inconsistent evidence ––credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, Schedule 2
CASES
MIMIA v Haji Ibrahim(2000) 204 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[Mr A] and Mrs [B] came to Australia from Egypt on a tourist visa on [date] September 2015 to visit their daughter for the birth of their grandchild. On 29 October 2015 they applied for protection visas on the basis that they feared harm as Coptic Christians living in Egypt.
A delegate refused their applications under s 65 of the Migration Act 1958 (the Act). In refusing the applications, the delegate rejected their claims that their daughter-in-law was forced to convert to Islam, that [Mr A] has an adverse profile with the Muslim Brotherhood and that they were attacked [in] August 2015. In addition, the delegate found that communal violence has decreased and Copts in urban areas can seek police protection when needed. The delegate found that there was no real chance or real risk of [Mr A] or Mrs [B] suffering harm if they returned to Egypt.
BACKGROUND
Both [Mr A] and Mrs [B] were born in Sohag, Egypt. [Mr A] is from a large family and has two surviving sisters who live in Egypt.
Mrs [B] has [number of siblings].
[Mr A] worked in [specified industry]. In the period 1967 to 1976 he worked for the Egyptian Army, achieving the rank of [a rank]. As a result of his service, he received a pension until 2018. After serving in the Army he worked [for] [a] Defence Force as a civilian between 1978 and 1990. The family returned to Egypt, establishing itself in Giza, and [Mr A] worked as [an occupation] from 1990 until 2010 when he retired.
They have three children: [Mr C], [Mr D] and [Ms E]. [Ms E] is an Australian citizen who lives in Australia with her husband and two children. [Mr C] and [Mr D] live in Egypt. In their claim form, [Mr A] and Mrs [B] claim to contact their sons once a week by telephone.
[Mr C] is their oldest son. He lives in Cairo and since 2018 works…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1835719 (Refugee)

Details

AGLC: 1835719 (Refugee) [2021] AATA 3073
Case: [2021] AATA 3073
Decision Date: 2 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr. A and Mrs. B against a delegate's decision to refuse their applications for protection visas. The applicants, who are Coptic Christians from Egypt, claimed they feared harm upon return due to their religion and alleged incidents including an assault in August 2015 and being forced to sell their home to the Muslim Brotherhood. The delegate had rejected these claims, finding that communal violence had decreased and that Copts in urban areas could seek police protection, ultimately concluding there was no real chance or risk of harm to the applicants if they returned to Egypt.

The court was required to determine whether Mr. A and Mrs. B had a well-founded fear of persecution for reasons of their religion or membership of a particular social group, specifically Coptic Christians in Egypt. This involved assessing both the subjective fear held by the applicants and the objective likelihood of them suffering harm upon return, considering the available country information and the evidence presented regarding the alleged incidents. The court also had to consider the credibility of the applicants' claims, particularly in light of inconsistencies and concerns raised about the authenticity of submitted documents.

The court applied the well-founded fear test, which requires both subjective and objective elements. It considered evidence from the DFAT Country Information Report Egypt, as well as information from the UK Home Office and the US Department of State. Significant concerns were raised regarding the authenticity of the medical reports provided by the applicants to substantiate their alleged injuries from the August 2015 assault, including discrepancies in signatures and the absence of official letterhead. The court found that the applicants had not established a well-founded fear of persecution, noting that they could obtain protection from the authorities and that their evidence contained credibility concerns.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

A delegate refused their applications under s 65 of the Migration Act 1958 (the Act). In refusing the applications, the delegate rejected their claims that their daughter-in-law was forced to convert to Islam, that [Mr A] has an adverse profile with the Muslim Brotherhood and that they were attacked [in] August 2015. In addition, the delegate found that communal violence has decreased and Copts in urban areas can seek police protection when needed. The delegate found that there was no real chance or real risk of [Mr A] or Mrs [B] suffering harm if they returned to Egypt. BACKGROUND Both [Mr A] and Mrs [B] were born in Sohag, Egypt. [Mr A] is from a large family and has two surviving sisters who live in Egypt. Mrs [B] has [number of siblings]. [Mr A] worked in [specified industry]. In the period 1967 to 1976 he worked for the Egyptian Army, achieving the rank of [a rank]. As a result of his service, he received a pension until 2018. After serving in the Army he worked [for] [a] Defence Force as a civilian between 1978 and 1990. The family returned to Egypt, establishing itself in Giza, and [Mr A] worked as [an occupation] from 1990 until 2010 when he retired. They have three children: [Mr C], [Mr D] and [Ms E]. [Ms E] is an Australian citizen who lives in Australia with her husband and two children. [Mr C] and [Mr D] live in Egypt. In their claim form, [Mr A] and Mrs [B] claim to contact their sons once a week by telephone. [Mr C] is their oldest son. He lives in Cairo and since 2018 works as an [occupation] in [workplace]. His wife [is] an [occupation]. [Mr D] lives in Giza. His wife [was] working in a [workplace], but Mrs [B] said she does not know where he lives now as he moves from place to place because of the difficulties [his wife] had at the [workplace]. [Mr A] and Mrs [B] first travelled to Australia in 2013 for the birth of [Ms E]’s first child, staying in Australia for approximately two months. They returned to Egypt and travelled again to Australia on a tourist visa [in] September 2015 and applied for protection visas on 29 October 2015.CLAIMS In his application, [Mr A] claimed that [in] August 2015 when walking with his wife they were assaulted by a group of people who asked him to join them for Muslim prayers. He states he contacted the police, but the authorities are corrupt in Egypt and unable to protect all citizens. He states the authorities are powerless to stop the attacks on Coptic Christians, and there is nowhere safe for Coptic Christians in Egypt. He states he is afraid to attend church because he is fearful he will be killed by Muslim extremists. In her application, Mrs [B] claims that if she returns to Egypt she will be harassed or killed. She states she will have to live in hiding and practice her religion in secret, and she will have to wear a headscarf to avoid being attacked. She repeats her husband’s claims of being assaulted [in] August 2015. Both [Mr A] and Mrs [B] claim in their application to fear harm from Muslim extremists and that they will not be free to practice their religion without persecution. They claim that police and other officials do nothing to protect Coptic Christians. They claim the police harm Egyptian Christians.

Evidence

Evidence Before The Court

In particular, the “DFAT Country Information Report Egypt (17 June 2019)” (the DFAT report) has been considered. Other country information was put to [Mr A] and Mrs [B] at the hearing from the United Kingdom (UK) Home Office and the US Department of State.CONSIDERATION OF CLAIMS AND EVIDENCE Central to [Mr A] and Mrs [B]’ claims are that they will be harmed as they are Coptic Christians. They detail two incidents that they say led them to fear that they will be harmed if they return to Egypt. In one incident they claim they were attacked outside a mosque and suffered injuries as those outside the mosque tried to make them come in for prayers. In another incident, they claim they were forced to sell their house to the Muslim Brotherhood before they came to Australia. Mrs [B] states she will need to wear a head covering to avoid abuse in the streets. They claim they did not feel safe to attend church services before they left Egypt, and also that the police harm Coptic Christians and do nothing to protect Coptic Christians. The test in this case looks to whether there is a well-founded fear of persecution because of their religion or membership of a social group. A well-founded fear has an objective and a subjective element. [Mr A] and Mrs [B] claim to hold a subjective fear of harm because of events that occurred to them and what they read in the media now. Looking at whether this fear is well-founded involves looking to what is likely to occur in the future, and whether there is a real chance of [Mr A] or Mrs [B] being persecuted because of their religion or because they are members of a particular social group.Assault [in] August 2015 [Mr A] and Mrs [B] claim to have been assaulted [in] August 2015 when going shopping. They were approached by a group of five people who asked them to come to prayer. When [Mr A] told them he was Christian they assaulted him and Mrs [B], resulting in injuries to them. [Mr A] provided a document “Medical Report & certificate” with a stamp of the [Clinic] signed by Dr [G]. This states [Mr A] attended the emergency unit for medicine and [surgery]. It states he also suffered an acute tear in ligaments of his [body part]. The medical advice was [details deleted]. Two copies of the report were provided, one in English and one in Arabic. Mrs [B] provided a “Medical report & certificate” with the stamp of the [Clinic] also by Dr [G] stating she attended [in August 2015 suffering bleeding from the nose in addition to severe pain in her left knee with painful and limited movement. She was diagnosed with epistaxis (blood nose) and a sprain in the lateral ligament of her left knee. The management was [details deleted], medication and bed rest for one month and to visit the clinic every week for follow up. The delegate noted that the signature of the medical report in Arabic did not match the signature of the medical report produced in English, the fonts differ. The English version does not purport to be a translation, it was issued in English, and the documents are not produced on a letterhead. The appearance of the document causes considerable concern about whether this document is genuine.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The person must be a member of the family unit of a person who meets either the refugee requirement or the complementary protection requirement and have applied for a visa of the same class. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In particular, the “DFAT Country Information Report Egypt (17 June 2019)” (the DFAT report) has been considered. Other country information was put to [Mr A] and Mrs [B] at the hearing from the United Kingdom (UK) Home Office and the US Department of State.CONSIDERATION OF CLAIMS AND EVIDENCE Central to [Mr A] and Mrs [B]’ claims are that they will be harmed as they are Coptic Christians. They detail two incidents that they say led them to fear that they will be harmed if they return to Egypt. In one incident they claim they were attacked outside a mosque and suffered injuries as those outside the mosque tried to make them come in for prayers. In another incident, they claim they were forced to sell their house to the Muslim Brotherhood before they came to Australia. Mrs [B] states she will need to wear a head covering to avoid abuse in the streets. They claim they did not feel safe to attend church services before they left Egypt, and also that the police harm Coptic Christians and do nothing to protect Coptic Christians. The test in this case looks to whether there is a well-founded fear of persecution because of their religion or membership of a social group. A well-founded fear has an objective and a subjective element. [Mr A] and Mrs [B] claim to hold a subjective fear of harm because of events that occurred to them and what they read in the media now. Looking at whether this fear is well-founded involves looking to what is likely to occur in the future, and whether there is a real chance of [Mr A] or Mrs [B] being persecuted because of their religion or because they are members of a particular social group.Assault [in] August 2015 [Mr A] and Mrs [B] claim to have been assaulted [in] August 2015 when going shopping. They were approached by a group of five people who asked them to come to prayer. When [Mr A] told them he was Christian they assaulted him and Mrs [B], resulting in injuries to them. [Mr A] provided a document “Medical Report & certificate” with a stamp of the [Clinic] signed by Dr [G]. This states [Mr A] attended the emergency unit for medicine and [surgery]. It states he also suffered an acute tear in ligaments of his [body part]. The medical advice was [details deleted]. Two copies of the report were provided, one in English and one in Arabic. Mrs [B] provided a “Medical report & certificate” with the stamp of the [Clinic] also by Dr [G] stating she attended [in August 2015 suffering bleeding from the nose in addition to severe pain in her left knee with painful and limited movement. She was diagnosed with epistaxis (blood nose) and a sprain in the lateral ligament of her left knee. The management was [details deleted], medication and bed rest for one month and to visit the clinic every week for follow up.