1905172 (Refugee)

1905172 (Refugee) [2023] AATA 4077 (18 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905172
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE:18 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2023 at 7:54am
CATCHWORDS
REFUGEE – Protection visa – Egypt – forced to practice Sunni Islam – followed the Qur’an and not the Sunnah – imputed with sympathy for, or membership of the MB – mental health – different claims – evidence regarding his claims to lack credibility – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – fabricated his claim in order to be granted a protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 424, 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 8 February 2019 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 5 April 2018.
The applicant appeared before the Tribunal on 26 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Egyptian) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant made the following claims in his protection visa application:
I was raised in a strict Sunni family and expected to practice my religion as my family did. My father's family is well respected in our area so it was very important in our family to ensure that we did nothing wrong with respect to community expectations. My uncle was a well known Sheik that specialized in helping people interpret the Quran and Hadith. I was part of his study groups since I was [age] years old.
I blindly believed all that I was taught. My uncle used to put in my head that learning the Quran and prophet Mohamed's teachings are more important than school education. When I was in [Country 1] I was surprised to meet many people who were not as strict with their religious belief and practice as I had expected them to be. I used to have many discussions with people at the Mosque and soon began to understand rather than simply believe my religion.
After a while in [Country 1] I began to see that many people and the religious aspect of the Government was corrupt. This started me questioning many concepts in Islam. When I returned to Egypt I quickly returned to the same life style with respect to religious practice as I had done before. I was unemployed so I started to spend more time with my uncle and I was being groomed to take over his position. Eventually I started to see many things that I did not agree with especially when people would ask my uncle a difficult question and I would see that the way he tried to answer did not make sense.
I started to question my uncle and this caused me a lot of problems. Eventually I was forced to comply or my uncle would report me to police for defaming Islam. I suffered a lot of problems and was forced to pretend that I was Sunni until I was able to leave Egypt. Now I do not practice Sunni Islam. I follow only the Quran and practice as required in the Quran. I do not believe in the Sunnah or Hadith.
(If I return to Egypt) I will be forced to practice Sunni Islam. I will be reported to police I could be harmed or killed.
(Did you experience harm in Egypt). Many heated arguments and threats that I will be disowned with family. Threats to be reported to police for insulting Islam. Forced to practice Sunni Islam. Family of prospective wife refused to accept me. friends and some relatives disowned me.
AAT Hearing
The applicant stated that he was under a lot of stress and pressure and hadn’t slept for three days and was taking medication. Asked if he had a medical certificate he said that he did and provided it to the Tribunal. It was put to him that he had a certificate from August last year and was asked if he had anything more recent. The medical documentation was examined by the member.
He stated that he received a medical certificate every 28 days. He agreed that he was being paid workers compensation. It was put to him that the certificate simply said that he had a bad back and was being paid compensation. He said that he was also on anti-depression medication. Asked if he had a medical certificate saying that he was unfit to attend the hearing, he said he had too many certificates on his phone. Asked again, he claimed that he would have done so if he had one. He was told that if he thought there were any medical issues that impinged on his ability to give evidence he should have provided it earlier so it could be considered. He was told that he could give evidence following the hearing. He was told that he had been asked to provide originals of the court document and death certificate as he had just provided English translations and he said they were at home.
Asked if he knew everything that was in his protection visa application and that it was true and correct, he said that not all of it. Asked what was not correct, he said some dates. Asked again if he knew everything and it was true and correct, he said that he did. He claimed that as soon as he arrived at the airport he would be taken by state security and sent to jail because there is a judgment against him. The charge was that he had been with the Muslim Brotherhood (MB). He had no other claims.
In early 2014 he was driving a taxi where MB members were his passengers – they had problems with the government and the neighbours notified the government about his connection to the MB. Asked where he drove them, he said that he picked them from the taxi rank and his neighbours saw and reported him. The authorities came to his house two or three times. He clarified that he drove a tuk-tuk not a taxi. He took the MB members for a long period of time before he was spoken to by the government.
They came to his home three times between 2014-2017. The authorities brought an arrest warrant and detained him. In 2014 he was taken to the police station for three days and then released him. The MB also threatened to kill him after he was found to have been at the police station. They told him not to report on them. In 2014 when he was taken for three days the authorities wanted to investigate where he was taking the MB when he drove them. He was tortured and interrogated. Asked if he had told his mental health support team about his torture, he said he developed his mental health issues in Australia. Asked the question again, he said that he hadn’t.
Asked what occurred in 2016 and 2017 when he was detained, he said that he was interrogated again about the MB. The MB also threatened him not to tell the police anything. Asked if anything happened to him after 2017, he said that he came to Australia. He came to Australia for protection and for work. Asked which it was for, he said that it was for humanitarian protection – he knew he could apply for protection here. Asked if he applied once he got here, he said he applied after 18 days but his memory was hazy. He then said that he didn’t remember.
It was put to him that if he came to Australia in order to apply for protection then it was reasonable to believe that he would have applied for protection quickly. He said that he had no money (he borrowed some to come to Australia) and didn’t know a lawyer. It was put to him that he could have presented himself at the airport or gone to the immigration department. He said that he was uneducated and couldn’t read English or Arabic. It was put to him that he had enough knowledge to come to Australia and it is reasonable to think that he would have prepared himself in some way to apply for protection once he arrived, given this was his stated purpose for coming here.
Asked how he knew where to go in Australia when he arrived or how to get a taxi once he came to Australia. He said that he slept under the bridge for three days in [Suburb 1]. Asked how he knew to go to [Suburb 1], he said it was a coincidence. Asked to explain his actions once he arrived given he knew nobody, couldn’t read any sign or speak English, he said that he arrived in Melbourne and then took a plane to [City 1]. Asked how he did this, he said that he slept in Melbourne for the night and asked every passer by what the time was. The hunger he felt was so intense that it motivated him to speak to passers – it was put to him that severe hunger couldn’t give him the ability to speak English and he said this was what occurred.
He then took a taxi from [City 1] to [Suburb 1]. Asked how he achieved this and how he knew to come to [Suburb 1] (at this point his adviser dialled in citing illness an technical difficulties for the delay), he claimed that after he found someone in Melbourne who helped him buy a ticket to [City 1] for $50 and then when he got to [City 1] he asked for and found an Arabic-speaking taxi driver who took him to [Suburb 1].
He was asked if he came to Australia as soon as he got a visa in Egypt and he said that he did. It was three or four days later. He agreed that he met someone in [Suburb 1] after three days who gave him a job. He was asked if he sought the help of this Arabic-speaking man to apply for protection. He appeared to have got a job before he applied for protection. He said that he left this work after two weeks. It was put to him that he came to Australia to seek protection, allegedly slept under a bridge, met an Arabic-seeking man and yet didn’t ask for his help to apply for protection. The Tribunal was concerned that he had come to Australia to work.
He repeated that he applied for protection within 18 days of arriving – asked if he was sure of this he said that he was. It was put to him that his protection visa claim was different to what he had claimed today. In his PV application he didn’t mention the MB and said that he only believed in the Quran and not the Sunnah or hadith and that his uncle (a famous sheikh) found him he would be harmed, imprisoned or killed for insulting Islam.
He claimed that the group of people he was driving were part of the MB and Qur’an. It was put to him that the MB believed in the Sunnah and he agreed. He had not mentioned driving the MB around or the police coming to his house or being arrested in his PV application and he said that he was saying this now. He was telling two completely different stories. He again said that he was driving around the MB who were extremists. It was put to him that he was talking about Qur’aniyyun in his PV claim – he said that the MB were Qur’an extremists. It was again put to him that he was telling different claims. In his PV claim he hadn’t been arrested, today he said he’d been arrested three times. One mentioned an uncle who would kill him, the other didn’t.
He said he swore on the Qur’an to tell the truth. It was put to him that the stories were different. He said that he forgot everything and was medicated. He couldn’t remember what he said five minutes prior.
He was asked if he had ever applied for a visa to another country before coming to Australia. He initially said he didn’t but then said he applied for [Country 1] and was refused. He didn’t know why he was refused as he didn’t read. Asked what type of visa he applied for he said he couldn’t remember. Asked why he was going he said he had a brother there and was visiting him. He borrowed money and sold is car to do this. He was asked if he told the Australian authorities that he had been refused a [Country 1] visa and he said that he had. Asked what type of visa he came to Australia on, he said it was a seaman’s visa. Asked how he got this when he was a tuk-tuk driver – he said that he had a passenger and there was a visa for Australia that he could get to get away from his problems in Australia.
The person was [Mr A] and he was a captain on a ship. It was put to him that this was very coincidental. He said that he was then able to get the visa by lodging the documents with [Mr A]’s company. Asked how he did this, he said that he applied as an employee of the company even though he wasn’t. Asked how he did this he claimed that he didn’t know he was coming to Australia. It was put to him that he chose to come to Australia to seek protection and he agreed that he came here to seek protection. It was put to him that he had just said he didn’t know that he was coming to Australia – he was asked why the company would sponsor him for a visa when he wasn’t a seaman. He said that he paid money to do this.
He paid money to [Mr A] who lodged the papers for him. Asked if he had mentioned this previously, he said that he didn’t remember. Asked when he found out about the existence of the court case that he had provided to the Tribunal, he said that it was 1 January 2018. Asked who told him about it, he said the lawyer told him. He had a lawyer in Egypt – asked why he had a lawyer, he claimed that it was because he had been accused of being with MB. He disagreed that he knew from 1 January 2018 that he had been sentenced to ten years in prison and said that the actual sentencing was on 15 April. Asked if he had a copy of the sentencing document, he said his lawyer had sent the Tribunal the document. It was put to him that the document had no date but he said it came out on 15 April. Asked if there was an extradition request from the Egyptian government for him, he said he would kill himself before this happened. He didn’t believe there was one.
He was told about s 424AA and it was put to him that during his DIBP interview he was asked if he had ever applied for another visa and he said that he hadn’t. He only admitted to doing so when it was put to him that he previously unsuccessfully applied for a [visa] for [Country 1]. In his visa to come to Australia he also denied having been barred from any other country. He had also claimed to the Tribunal that he was unsuccessful in [a] visa to see his brother in [Country 1] whereas he had applied for a [visa]. This could go to issues of his credibility. He said that he had told everything that he had.
It was also put to him under s 424AA that he had his Australian visa granted on 9 January and a transit visa on 17 January 2018 yet he didn’t arrive in Australia until [date] February – today he stated that he left a few days after being granted the visa as he was fleeing to here to claim protection. His delay was inconsistent with his claim and this raised questions in the Tribunal’s mind as to the truthfulness of his claim. He again said that he had said everything he wanted to and he no longer had patience for this.
Also under s 424AA it was put to him that he claimed the sentencing document he provided to the Tribunal was from 15 April 2018 and that his lawyer in Egypt told him about this. Yet in his Departmental interview from 1 February 2019 he made no mention of being charged, let alone sentenced. He stated that he had enough and was very tired. It was put to him that the hearing was nearly concluded but the Tribunal was concerned that he was not being truthful and that he had provided a false document to the Australian government. He was told that he could have more time to respond to the Tribunal’s concerns and he said the Tribunal could speak to the court in Egypt. He was asked why he never mentioned this court case to the Department at interview and he said he received it in June and was not fully conscious of what was going on and was in [a] Hospital for six months.
It was put to him that he arrived in Australia on [date] February but didn’t apply for protection until 5 April 2018 which was more than two months rather than the 18 days he had claimed. The delay was also not reflective of the reason he claimed to come to Australia, which was to seek protection. He said he knew nobody here and didn’t speak English. Asked why he said he took 18 days, he said he didn’t remember dates and believed it was about 18 days. He said he wasn’t focused and didn’t remember anything from these interviews.
Asked why he couldn’t receive mental health treatment in Egypt if he returned, he said that he only had issues since he had been in Australia. Asked if he would therefore be without mental health stressors in Egypt, he claimed that it would be worse and he may even commit suicide. It was put to him that there were mental health clinics and hospital-based treatments in Egypt and he said he could no longer live in Egypt. He said that he was psychologically distressed and he would commit suicide rather than return to Egypt. He was told that he could provide medical evidence relating to the issues that had been discussed previously (relating specifically to mental health) and was given additional time to provide this.

His advisor stated that the applicant had been in [a] Hospital for six months after a fall at work. His memory was very bad and he was all over the place because of his mental health issues. She claimed that the applicant had said he would provide her with medical evidence but had yet to do so. She claimed that he was not intentional with his differing answers but it was due to medical issues – she asked for more time as his doctor was away until next week and she was told to keep the Tribunal apprised of their ability to access the medical evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [date] February 2018 using a maritime crew visa (and transit visa) granted on 9 January (and 17 January), and applied for protection on 5 April 2018. I have sighted a copy of his passport and accept that Egypt is the applicant’s country of nationality.
The applicant is a [age] year-old male who variously claimed that if he returned to Egypt he could be forced to practise Islam because he only followed the Qur’an and not the Sunnah, and that there was a court judgment against him for being with the Muslim Brotherhood (MB) and he would be jailed as a result.
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 many of his claims in order to be granted a protection visa.
Medical Issues
I have taken into account the adviser’s claim that the applicant suffered a [workplace] injury that meant he was in [a] Hospital for six months, that he was forgetful since then and had to be accompanied by someone at all times. I place no weight on this claim as the applicant did not request a support person for the hearing and attended on his own.
The adviser was given the opportunity to provide medical evidence post-hearing in support of this claim – three documents were provided, two from different GPs at the same practice (one dated 22 July 2023 the other undated) and one discharge/transfer letter from a community mental health nurse dated 21 August 2022. The dated GP letter said the applicant reported multiple emergency attendances due to panic attack and stress (no evidence was presented to support this claim) and that he reported suffering from adjustment disorder, and a [injury] and that he reported back and neck pain.
The mental health nurse’s notes stated the applicant with depressed mood and anxiety and suffered from adjustment disorder due to his loss of employment, financial hardship, chronic pain and social isolation. None of the medical evidence supported the claim that the applicant had an injury to his head, let alone that it required six months hospitalisation or that he suffered any memory loss at all.
Whilst I am satisfied that he suffers from adjustment disorder for the reasons outlined by the community mental health nurse, there is nothing to indicate that his memory has been impacted and therefore I do not accept that there are any medical reasons that could account for the inconsistencies evident in the applicant’s claims.
MB Claim
I do not accept that the applicant ever transported MB members in his tuk-tuk and was imputed with sympathy for, or membership of the MB because of it, or that he has ever been charged or sentenced in an Egyptian court because of this. To begin with he made no mention of this claim in his initial protection visa application and it was not raised until his DIBP interview. He was not forthcoming on reasons for the inconsistency however I do not accept that he had forgotten everything and was medicated. As the Tribunal has noted above, there is nothing in the medical evidence he presented that would indicate he suffered from memory disfunction or explain why his claims were so different from each other.
I also do not accept that he has been charged and sentenced to ten years prison in absentia by an Egyptian court. I have taken into account the translation of what he claimed was the court document that he provided. No original document was ever provided and the document that ws translated appeared to have no date of issue/sentencing. The applicant claimed that he was sentenced on 15 April 2018 and he was advised by his lawyer in Egypt. Yet he made no mention of this in his 1 February 2019 DIBP interview. I do not accept that he wasn’t fully conscious of what was going on because he had been in [a] Hospital for six months given he has provided no evidence to support his claim regarding his alleged six-month hospital stay.
Islam Claim
I do not accept that the applicant would be forced to practice Islam on return to Egypt, that he would be reported for insulting Islam, harmed or killed because of this, disowned by his family or that he only believes in the Qur’an and not the Sunnah. He never advanced these claims at the hearing, instead making a claim about transporting MB members in his tuk-tuk. He was told on several occasions that the claim he put forward at hearing regarding his alleged connection with MB members and his initial protection visa claim about being a Qur’aniyun, or someone who only follows the Qur’an and not the Sunnah (words and actions of the Prophet Muhammad) and feeling the wrath of his uncle the sheikh were completely different.
He failed to answer the question and simply said that the MB were Qur’anic extremists. The Tribunal is satisfied that he was given several opportunities to put forward his initial claim about being a Qur’aniyyun and failed to do so. I do not accept that the inconsistency can be explained by any mental health condition, but rather that the claim itself was fabricated. I therefore do not accept that the applicant is, or would be perceived to be a Qur’aniyyun or that he would be forced to practise Islam or be reported to the police on return to Egypt.
Other Issues
The applicant’s claims regarding his migration history and related actions also lack credibility and reinforce concerns the Tribunal has regarding his truthfulness. The applicant had previously unsuccessfully applied for a [visa] to [Country 1] however never mentioned this when asked at his DIBP interview whether he had ever been refused a visa.
The implausible nature of his claim regarding how he obtained a visa to Australia and his claims regarding his subsequent actions once in Australia also raise concerns about his truthfulness and motivation for coming to Australia. To begin with the coincidence of having a ship’s captain ride in his tuk-tuk who was then willing to take money to provide the applicant with a seaman’s visa and a transit visa utilising the ship’s company’s name seems an extraordinary risk to take by a ship’s captain on behalf of someone whom he had just met on a tuk-tuk ride. The personal risk to his position as a ships captain relative to the minimal financial gain he would have made lacks credibility.
The applicant also waited for more than two weeks after receiving his transit visa before he left Egypt and then waited for two months before applying for protection in Australia, despite claiming that he fraudulently obtained a seaman’s and transit visa with the express purpose of entering Australia so he could apply for protection. I do not accept that the delay in applying in Australia was because he knew nobody here and neither spoke nor read English.
Despite these language constraints he also claimed that he arrived in Melbourne, then was so hungry that he somehow became able to converse in English to a passer by who in turn was able to help him to purchase a $50 airline ticket to [City 1]. He then was somehow able to find an Arabic-speaking taxi driver at [City 1] Airport who then somehow deposited him in [Suburb 1]. After allegedly sleeping under a bridge in [Suburb 1] for three days he then met an Arabic-speaking man who offered him a job where he worked for two weeks. Any one of these claims stretches credibility to breaking point and the combination of all of them is completely implausible.
It lacks credibility that having come to Australia with the express purpose of seeking protection that he didn’t either present himself to Customs at the airport or, allegedly having found an Arabic-speaking taxi driver and man in [Suburb 1] he never asked either of them for assistance. Rather, he began working shortly after arriving in Australia rather than applying for protection. This raises concerns that the applicant was actually looking to come to Australia purely for economic reasons. Even if he did need work for money to survive he could also have sought assistance to seek protection at the same time. One did not preclude the other.
I accept that the applicant has some mental health issues (adjustment disorder) although they do not appear to be severe and are treated by medication. I note that the applicant was able to obtain a visa to come to Australia, travel on his own and find employment here which would indicate that he had a good level of functionality on arrival in this country.
The applicant has not claimed, nor has he provided any evidence that the condition could not be treated in Egypt and, whilst the Tribunal acknowledges that the mental health system in Egypt is not to the same standard as it is in Australia, available country information indicates that it is integrated in the primary healthcare system and would be adequate for the applicant’s needs.[1]
[1] Community Mental Health Services in Egypt - Okasha - Consortium Psychiatricum (consortium-psy.com), accessed 15 August 2023.
I also note that the applicant is reported to be suffering from social isolation and he has indicated that he is illiterate and does not speak English. This would no doubt increase his social isolation in Australia and likely contribute to his mental health condition. Returning to Egypt, to a culture he is familiar with and where he understands the language, and where he has two brothers would be likely to positively impact on his mental health.
Country information[2] indicates the importance of family in the treatment of one’s mental health and it is reasonable to believe returning to his family in Egypt would aid in the treatment of his adjustment disorder and depression. The Tribunal notes that he has threatened to commit suicide rather than return to Egypt, however he has not previously been reported as possessing suicidal ideation in any of the medical reports he has provided to the Tribunal, and the Tribunal also notes that he has made a range of other claims that I have found were fabricated. Overall, I do not accept that there is a real chance that the applicant will suffer serious harm on the basis of his mental health (including suicide) on return to Egypt.
[2] See for example How Does Family Life Affect Mental Health? Building Blocks or Barriers - Mental Health Center, Preserve and strengthen family to promote mental health - PMC (nih.gov), A mixed methods exploration of the role of multi-family groups in community treatment of patients with depression and anxiety in Pakistan | International Journal of Mental Health Systems | Full Text (biomedcentral.com)
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 there is not a real chance that the applicant will suffer serious harm for any 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant believes in the Qur’an and not the Sunnah, that he would be accused of defaming Islam or forced to practice Sunni Islam on return to Egypt, that he ever drove MB members in a tuk-tuk and was charged and sentenced to 10 years for doing this, or that his mental health issues could not be treated in Egypt or that he would commit suicide. Because of this 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.
…

[2023] AATA 4077

18 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice