1835748 (Refugee) - [2022] AATA 2420

1835748 (Refugee) [2022] AATA 2420 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Carina Ford (MARN: 9802862)
CASE NUMBER: 1835748

COUNTRY OF REFERENCE: Egypt
MEMBER:Peter Vlahos
DATE:28 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

This Statement was made on 28^th June 2022 at 3.00PM
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – particular social group – Coptic Christian woman – threats from Muslim extremists – disputes with Muslim neighbours – opposition to local mosque’s activities – physical and sexual assault – detention – employment – anti-Christian violence – gender-based violence – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Alamdar v MIMA [2001] FCA 1244
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Lama v MIMA (1999) 57 ALD 613
SZDNE v MIMIA [2004] FMCA 717
Wang v MIMA (2000) 105 FCR 548
Weheliye v MIMA [2001] FCA 1222
Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)
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 30 November 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 20 May 2016. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 1 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister [Sister A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) 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…

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 1835748 (Refugee)

Details

AGLC: 1835748 (Refugee) [2022] AATA 2420
Case: [2022] AATA 2420
Decision Date: 28 June 2022

CaseChat Overview and Summary

The applicant, an Egyptian Coptic Orthodox Christian woman, sought protection in Australia, claiming she feared persecution in Egypt due to her religion and gender. She alleged ongoing disputes and threats from Muslim neighbours, including physical assaults, false allegations, and harassment related to her opposition to a local mosque's activities. The applicant also cited broader anti-Christian sentiment and gender-based violence in Egypt as reasons for her fear. The case came before the Tribunal for review of a decision concerning her application for a protection visa.

The central legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under Australian law. This required determining if she met the criteria for being a refugee, specifically whether she had a well-founded fear of persecution for reasons of her religion or membership in a particular social group, and whether she could access effective protection from the Egyptian state. The Tribunal also considered the impact of gender on her claims.

The Tribunal accepted the applicant's identity as an Egyptian national and a Coptic Orthodox Christian, acknowledging the documented discrimination against Christians in Egypt. However, it noted that the enforcement of generally applicable laws, even if discriminatory in effect, does not ordinarily constitute persecution for the purposes of the Refugee Convention unless it is discriminatory in nature. The Tribunal referenced the principle that persecution must be "for reasons of" one of the prescribed categories and not merely punishment for contravening a general criminal law. The Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of origins and nationality Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal at the hearing and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and has had her claims (as presented) assessed against that country in relation to their claims made pursuant to ss. 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence currently before the Tribunal, the Tribunal further find and concludes that the applicant’s identity is as is claimed for the purposes of this decision. Department File before the Tribunal The Tribunal has before it the Department’s file relating to the applicant’s application for Protection visa. The Tribunal also has had regard to the material and information referred to in the delegate’s decision record. The applicant a copy of this decision record to the Tribunal with her application to Review the Department’s decision. Background – the Applicant’s migration/visa history [In] December 2015 the applicant arrived on a [Visitor] visa. On 20 May 2016 the applicant applied for a XA-866 Protection visa and was granted the associated Bridging visa granted. The applicant is [an age]-year-old female (DOB, [specified]) born in Cairo, Egypt. She claims that she briefly transited through [Country 1] before arriving in Australia but has not travelled to any other country. She identifies as Coptic Orthodox Christian. The applicant’s parents are both deceased. The applicant claims to be now retired, but previously had worked as [an occupation 1], cared for mother and served at a local church (when living in Egypt). The applicant claims that her education level is that of having completed her secondary school level education and completed a [further qualification]. The applicant’s claims for Protection The applicant provided the Department with the following claims:[1][1] see, Department of Home Affairs File [number], applicant’s Application for Protection visa. See also decision record dated 28 November 2018. §The applicant left Egypt for Australia to seek protection from Muslim extremists, Salafists and her Muslim neighbours due to her Coptic Orthodox Christian religion; §the applicant specifically fears harm from harassment, false allegations and threats against her life and personal safety; §the applicant in particular fears harm from her Muslim neighbours, [Neighbour A] and her son, [Neighbour B]. The applicant also fears harm from [Neighbour B’s] family; §the applicant and her family received threats and harm from Muslim neighbours who reside in her building. The applicant’s Muslim neighbours attend an unofficial mosque, which is run by a group of fundamentalists. The group is known for kidnapping Christian girls and forcing them to convert to Islam in order for them to get married to Muslim men; §the applicant lives close to a mosque and finds it difficult to lead a Christian life. During Muslim prayers, clerics of the mosque direct sound from speakers towards their apartment. A single wall separates the Muslim prayer hall and her building. Muslims buy adjacent shops and buildings in an effort to extend their prayer space; §the applicant’s family owns one of three apartments near the mosque, which are occupied by both Christians and Muslims. Local Muslims and clerics regularly set up mats and carpets in front of building with speakers directed towards Christian occupants. Cars cannot part in the street during prayer times. Prayer times can sometimes be scheduled at 3 am or 4 am. Consequently, the applicant complains of sleep depravation “like torture;” §the applicant suffered ongoing disputes with local Muslims for over 20 years. The applicant has a pending legal dispute with [Neighbour A] and [Neighbour B], who are living unlawfully in the building; §three Muslim occupants, [Neighbour A], [Neighbour B] and [Neighbour C], live close to the applicant. [Neighbour C] is close friends with the cleric of the local mosque; §the Muslim occupants invited strangers into the building. They convened at street corners and harassed and made fake reports to police about the applicant. The applicant’s car was scratch and dented from stones, and also her windscreen and headlights were smashed; §the Muslim prayer building depicted signatures of members of a local Muslim gang on their walls, including [Neighbour B]. The applicant described [Neighbour B] as “a callous and dangerous man” . The applicant believes [Neighbour B] targeted the applicant because of her Christian beliefs;§the applicant claims that in May 1996, an argument ensued between [Neighbour B] and the applicant’s sister, [named], which resulted in her had being stabbed. Police recorded a statement about the incident; however, [Neighbour B] continues to live in the applicant’s building; §the applicant stated police in Egypt are not effective. In early 2005, [Neighbour B] harassed the applicant’s sister, [Sister B]. When police attended the scene, they did not take a statement, but cautioned the applicant to be careful because of sensitive issues between Christians and Muslims and risk of such issues could be escalated to the National Security Department; §[In] January 2005, [Neighbour B] claimed the applicant’s brother, [Brother A], assaulted and left him hospitalised in the “[named] Hospital.” The applicant states [Neighbour B] made false allegations against [Brother A] because police failed to find evidence of his admission to hospital; §[in] January 2005, [Neighbour A] made another false allegation against [Brother A]. She claimed the [Brother A] physically and verbally assaulted her. He was summoned to court but failed to appear for questioning because he never received a court notice. The applicant states that police can be bribed not to deliver court notices. [Brother A] was arrested and taken briefly into custody before being released. The judge mentioned claims against [Brother A] were fabricated; §in November 2007, [Neighbour B] made false allegations of assault against [Brother A] and the applicant’s [sisters], [named]. [Neighbour B] claimed these family members pushed and caused him injury. The applicant disputed these claims because her sister, [Sister B], at the time of the alleged incident had been in Australia. The applicant attached to her application a police report and medical report, dated [in] July 2007, which confirmed the fact that [Neighbour B] sustained injuries from a motor car accident and not an assault; §in August 2007, [Neighbour A] made a further police statement to corroborate that her son, [Neighbour B], was involved in a car accident. The applicant said that her Muslim neighbours would go to any lengths to ensure she does not lead a free and happy life. The applicant believes the false allegations are intended to torture her family and make them suffer; §in September 2012, [Mr A] threw a block the entire street with marques and set up speakers and prayer mat outside her apartment; §in the applicant’s neighbourhood, Muslim clerics push their beliefs on Christians and treat them as ‘Qafara’ or infidels. The cleric of the local mosque approached the applicant’s brother, [Brother B], and asked whether he wanted to pray with him during Muslim prayers. The applicant believes, like her brother, that Muslims treat Christians with lower status. She cannot bear the “constant pressure of converting to Islam” facing her every day; §the applicant feels her family are not safe in Egypt because of the surrounding danger. She could not leave Egypt immediately because of her mother’s ill health and the guilt of abandoning the rest of her family. Her mother passed away in July 2011. During the Hosni Mubarak regime, the applicant states Coptic Orthodox Christians experienced harassment and discrimination. After the Mubarak regime, the applicant though law and order would improve un Egypt and so her family remained there, however the impracticalities and expenses associated with such a move prevent this. As an alternative, she considered moving to her older brother’s home, however that house is too small and already accommodated her brother’s wife and [children]; and §the applicant is afraid to speak up or even defend her legal rights in her community because she may insult Islam or be answerable to the National Security Department. As ‘a Christian woman’, the applicant refrained from seeking assistance from police because it causes her undue fear and anxiety.

Decision

Reasons for decision

The Ministry of Justice introduced measures in December 2015 to discourage such arrangements but refrained from eliminating the practice altogether. DFAT assesses that the majority of Egyptian women, regardless or religion or socio-economic status, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and the workforce. DFAT assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence. Activists who criticise government failures in relation to gender violence are likely to face arrest and prosecution in relation to their activism.REASONS FOR DECISION Is the applicant a ‘refugee’ as she claims? The applicant (and her sister) claims to fear returning to Egypt because of the persecution and discrimination she would face as Coptic Orthodox Christian and because of her gender as a female. The applicant fears continuing reprisals from her Muslim neighbours in Egypt (where she lived) because of her open opposition (with hers sister) against the operation of a local mosque opposite her residential apartment and the expansion of a prayers hall. The Tribunal noted that the applicant (and her sister) has also claimed to be a Coptic Orthodox Christian in her Protection visa application.[41] The Tribunal accepts that the applicant (and her sister) is a Coptic Orthodox Christian. The Tribunal does not doubt the applicant’s (and her sister’s) Christian background and beliefs. [41] see, Department of Home Affairs File [number] and [number] Country information referred to earlier in this decision confirms (that despite recent efforts to ameliorate communal violence and religious antagonisms by the Sisi government) there is discrimination at all levels of Egyptian society against ‘Christians’. The Tribunal accepts this is religiously motivated and is aimed at all religious (non-Muslim) minorities. The applicant’s (and her sister’s experiences) in relation in seeking effective protection under the rule of law (in her area) within the Egyptian state apparatus because she and other members of her family are Coptic Orthodox Christians is not unique. Enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[42] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[43] As Brennan CJ stated in Applicant A: the feared persecution must be discriminatory…[It] must be “for reasons of” one of [the prescribed] categories. This qualification …excludes persecution which is not more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[44][42] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.[43] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20]. [44] Applicant A v MIEA (1997) 190 CLR 225, at 233.

Ratio Decidendi

Legal Principle Established

The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of origins and nationality Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal at the hearing and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and has had her claims (as presented) assessed against that country in relation to their claims made pursuant to ss. 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence currently before the Tribunal, the Tribunal further find and concludes that the applicant’s identity is as is claimed for the purposes of this decision. Department File before the Tribunal The Tribunal has before it the Department’s file relating to the applicant’s application for Protection visa. The Tribunal also has had regard to the material and information referred to in the delegate’s decision record. The applicant a copy of this decision record to the Tribunal with her application to Review the Department’s decision. Background – the Applicant’s migration/visa history [In] December 2015 the applicant arrived on a [Visitor] visa. On 20 May 2016 the applicant applied for a XA-866 Protection visa and was granted the associated Bridging visa granted. The applicant is [an age]-year-old female (DOB, [specified]) born in Cairo, Egypt. She claims that she briefly transited through [Country 1] before arriving in Australia but has not travelled to any other country. She identifies as Coptic Orthodox Christian. The applicant’s parents are both deceased. The applicant claims to be now retired, but previously had worked as [an occupation 1], cared for mother and served at a local church (when living in Egypt). The applicant claims that her education level is that of having completed her secondary school level education and completed a [further qualification]. The applicant’s claims for Protection The applicant provided the Department with the following claims:[1][1] see, Department of Home Affairs File [number], applicant’s Application for Protection visa. See also decision record dated 28 November 2018. §The applicant left Egypt for Australia to seek protection from Muslim extremists, Salafists and her Muslim neighbours due to her Coptic Orthodox Christian religion; §the applicant specifically fears harm from harassment, false allegations and threats against her life and personal safety; §the applicant in particular fears harm from her Muslim neighbours, [Neighbour A] and her son, [Neighbour B]. The applicant also fears harm from [Neighbour B’s] family; §the applicant and her family received threats and harm from Muslim neighbours who reside in her building. The applicant’s Muslim neighbours attend an unofficial mosque, which is run by a group of fundamentalists. The group is known for kidnapping Christian girls and forcing them to convert to Islam in order for them to get married to Muslim men; §the applicant lives close to a mosque and finds it difficult to lead a Christian life. During Muslim prayers, clerics of the mosque direct sound from speakers towards their apartment. A single wall separates the Muslim prayer hall and her building. Muslims buy adjacent shops and buildings in an effort to extend their prayer space; §the applicant’s family owns one of three apartments near the mosque, which are occupied by both Christians and Muslims. Local Muslims and clerics regularly set up mats and carpets in front of building with speakers directed towards Christian occupants. Cars cannot part in the street during prayer times. Prayer times can sometimes be scheduled at 3 am or 4 am. Consequently, the applicant complains of sleep depravation “like torture;” §the applicant suffered ongoing disputes with local Muslims for over 20 years. The applicant has a pending legal dispute with [Neighbour A] and [Neighbour B], who are living unlawfully in the building; §three Muslim occupants, [Neighbour A], [Neighbour B] and [Neighbour C], live close to the applicant. [Neighbour C] is close friends with the cleric of the local mosque; §the Muslim occupants invited strangers into the building. They convened at street corners and harassed and made fake reports to police about the applicant. The applicant’s car was scratch and dented from stones, and also her windscreen and headlights were smashed; §the Muslim prayer building depicted signatures of members of a local Muslim gang on their walls, including [Neighbour B]. The applicant described [Neighbour B] as “a callous and dangerous man” . The applicant believes [Neighbour B] targeted the applicant because of her Christian beliefs;§the applicant claims that in May 1996, an argument ensued between [Neighbour B] and the applicant’s sister, [named], which resulted in her had being stabbed. Police recorded a statement about the incident; however, [Neighbour B] continues to live in the applicant’s building; §the applicant stated police in Egypt are not effective. In early 2005, [Neighbour B] harassed the applicant’s sister, [Sister B]. When police attended the scene, they did not take a statement, but cautioned the applicant to be careful because of sensitive issues between Christians and Muslims and risk of such issues could be escalated to the National Security Department; §[In] January 2005, [Neighbour B] claimed the applicant’s brother, [Brother A], assaulted and left him hospitalised in the “[named] Hospital.” The applicant states [Neighbour B] made false allegations against [Brother A] because police failed to find evidence of his admission to hospital; §[in] January 2005, [Neighbour A] made another false allegation against [Brother A]. She claimed the [Brother A] physically and verbally assaulted her. He was summoned to court but failed to appear for questioning because he never received a court notice. The applicant states that police can be bribed not to deliver court notices. [Brother A] was arrested and taken briefly into custody before being released. The judge mentioned claims against [Brother A] were fabricated; §in November 2007, [Neighbour B] made false allegations of assault against [Brother A] and the applicant’s [sisters], [named]. [Neighbour B] claimed these family members pushed and caused him injury. The applicant disputed these claims because her sister, [Sister B], at the time of the alleged incident had been in Australia. The applicant attached to her application a police report and medical report, dated [in] July 2007, which confirmed the fact that [Neighbour B] sustained injuries from a motor car accident and not an assault; §in August 2007, [Neighbour A] made a further police statement to corroborate that her son, [Neighbour B], was involved in a car accident. The applicant said that her Muslim neighbours would go to any lengths to ensure she does not lead a free and happy life. The applicant believes the false allegations are intended to torture her family and make them suffer; §in September 2012, [Mr A] threw a block the entire street with marques and set up speakers and prayer mat outside her apartment; §in the applicant’s neighbourhood, Muslim clerics push their beliefs on Christians and treat them as ‘Qafara’ or infidels. The cleric of the local mosque approached the applicant’s brother, [Brother B], and asked whether he wanted to pray with him during Muslim prayers. The applicant believes, like her brother, that Muslims treat Christians with lower status. She cannot bear the “constant pressure of converting to Islam” facing her every day; §the applicant feels her family are not safe in Egypt because of the surrounding danger. She could not leave Egypt immediately because of her mother’s ill health and the guilt of abandoning the rest of her family. Her mother passed away in July 2011. During the Hosni Mubarak regime, the applicant states Coptic Orthodox Christians experienced harassment and discrimination. After the Mubarak regime, the applicant though law and order would improve un Egypt and so her family remained there, however the impracticalities and expenses associated with such a move prevent this. As an alternative, she considered moving to her older brother’s home, however that house is too small and already accommodated her brother’s wife and [children]; and §the applicant is afraid to speak up or even defend her legal rights in her community because she may insult Islam or be answerable to the National Security Department. As ‘a Christian woman’, the applicant refrained from seeking assistance from police because it causes her undue fear and anxiety.