2002228 (Refugee)

2002228 (Refugee) [2020] AATA 647 (2 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002228
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Nathan Goetz
DATE:2 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 March 2020 at 2:36pm

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – attack and threats by Muslim gang and harassment by police – credibility concerns – delay in applying for protection – inconsistent evidence – delay in raising key claims – criminal history – country information – status of Coptic Christians in Egypt – moderate risk of discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the protection visa on 14 October 2019. He had an interview with the delegate on 1 November 2019. On 3 February 2020 the delegate refused to grant the visa.
The applicant applied to the Tribunal on 6 February 2020 for a review of the refusal decision. He appeared at the Tribunal on 27 February 2020 to give evidence and present arguments.
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 (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has considered the contents of the 17 June 2019 DFAT Country Information Report on Egypt and the 24 November 2015 DFAT Thematic Report on Egyptian Copts.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a protection visa, either by meeting the ‘refugee’ or the ‘complementary protection’ criteria.
The applicant claims to be a citizen of Egypt and a Coptic Christian.
The applicant’s migration history is as follows. [In] September 2008 he arrived in Australia as the holder of a student visa that had been granted offshore [in] August 2008. He had applied for that visa [in] May 2008.
[In] March 2011 before the student visa was to cease on 15 March 2011, he applied for another student visa. This visa was granted and was valid until [November] 2013.
[In] June 2012 the student visa was cancelled and the applicant became an unlawful non-citizen. On 18 June 2012 the applicant lodged a combined partner visa. [In] March 2014 he was granted a temporary partner visa. The applicant was married [in] October 2011.
[In] August 2015 the applicant was refused the permanent partner visa and the temporary partner visa ceased on 17 August 2015. On 17 September 2015 the applicant was granted a bridging visa on departure grounds. This bridging visa was valid until 24 September 2015.
On 23 September 2015 the applicant applied to the Tribunal for a review of the decision to refuse his permanent partner visa. The Tribunal affirmed the decision on [in] November 2016.
[In] December 2016 the applicant commenced proceedings in the Federal Circuit Court against the Tribunal decision. [In] September 2017 the Federal Circuit Court remitted the matter back to the Tribunal. [In] May 2019 the Tribunal again affirmed the refusal decision. The bridging visa the applicant had been granted in relation to proceedings ended [in] June 2019.
[In] September 2-19 the applicant was detained under s.189 of the Act as an unlawful-non citizen and was placed into immigration detention. On 14 October 2019 he lodged the protection visa application.
In his written protection visa application, the applicant claimed that he did not have a National Identity Card. The Tribunal queried this with the applicant at hearing, as ‘like all Egyptians, Copts carry a government-issued national identity card. The identity card contains a field for the bearer’s religion – in the case of Copts, ‘Christianity is marked, as it is for members of other Christian groups’.[1] It was curious to the Tribunal that the applicant had not produced this document mandatory document. The applicant told the Tribunal that he understood the question to relate to an Australian national identity card. The Tribunal accepts that the applicant misunderstood the question. At the hearing, he produced a copy of his Egyptian National Identity Card from his ‘Google’ drive and submitted this to the Tribunal. As the card was in Arabic, the applicant read its contents to the Tribunal. The card is contained in Folio 28 to 29 on the Tribunal file. The applicant told the Tribunal that card was genuine. He read the contents of this card to the Tribunal, including his National ID number as [number] and noted the back of the card declared that he was Male, Christian and Single.
[1] 24 November 2015 DFAT Thematic Report on Egyptian Copts at 2.17
The applicant told the Tribunal about his attendance at [a] church in his local area of [Suburb 1], a suburb of Alexandria in Egypt and about his attendance at the Cathedral in Alexandria. He was able to talk about the founder of his religion, as well as his receipt of the sacraments. He detailed his past attendances at Orthodox Churches in New South Wales and was able to provide the Tribunal with meaningful detail about the priests at those churches. The Tribunal also considered the oral evidence the applicant provided that he was a Coptic Christian at a Tribunal hearing concerning a partner visa refusal: [Case Number].
In the written protection visa application, the applicant claimed that he left Egypt because he feared for his life. He received death threats as a result of his testimony against a Muslim gang who attacked him and his girlfriend while he was shopping for Christmas. He claims that he was attacked because he was a Christian. He and his girlfriend were also robbed of his possession. He wrote that corrupt police covered up this incident and kept the applicant in custody for two days. He was held until the morning. He was forced to sign a case dismissal document to get out of custody and had to get medical attention as part of his own cost. He was not provided medical treatment in custody as part of this punishment. He applied for a student visa to come to Australia a couple of months after the incident. He claimed that he was unable to move to another area of Egypt because wherever he went he would need to provide his address to the government, which mean that he could be harmed wherever he went to. The police and the government are against Christians in Egypt.
The written protection visa application declares that the applicant has the following criminal history in Australia. In September 2014, he was sentenced to a 12 month good behaviour bond for ‘domestic violence offences’. At the hearing the applicant said that was imposed at [Court 1] and he charges were stalking and breach of an Apprehended Violence Order. His written application also declared that he had a charge of ‘fraud’ which was listed [in] November 2019. At the hearing the applicant said that he pleaded guilty to three charges concerning obtaining property by deception and theft. He stole a bag that contained a credit card and he used that credit card to buy food. The matter was adjourned and he was sentenced to a $400 fine by [Court 2 in] January 2020. The Tribunal put to the applicant that it may have some concerns about whether he would be a credible witness given the finding by a court that he had engaged in dishonest offences. The applicant said that this offending was a consequence of not being able to work, as he was prohibited from doing as a condition of his visa. He said that he had been without work for 6 months, used up all his savings and sold his belongings. He was destitute and intoxicated at the time. The Tribunal understands the applicant to be saying that the offending was out of character, and the offending was as a result of need, not greed.
The applicant told the Tribunal that he first became aware that he could apply for a protection visa ‘5 or 6 months ago’. He became aware of that when he went onto the immigration website and was going through the documents so he could apply for his last bridging visa. The applicant then changed this evidence and said that he was aware while he was in Egypt that he could apply for a protection visa. The agent he used to apply for a student visa to come to Australia had told him about this. When the Tribunal indicated that his evidence about when he knew he could apply for a protection visa was inconsistent, he told the Tribunal that he was fleeing Egypt and was told that he could go to Australia to study and get permanent residency through study. Therefore, there was no need to lodge a protection visa. He also spoke to his migration agent in Australia who assisted him with his subsequent student visa application and his partner visa. He discussed with the agent a protection visa and he was considering lodging such an application, but the applicant said if he lodged a protection visa he would lose everything. He did not have any paperwork or documents and he would lose permission to be here. The Tribunal understands this to mean that the applicant would likely be unsuccessful and be returned to Egypt. The agent also told the applicant that lodging a protection visa would be too much money given that he was already using her services for his student visa and his partner visa. It was when the applicant’s marriage failed and his review application to the Tribunal failed that he lodged the protection visa application because he had no further option. The Tribunal queried why the applicant would not have lodged a protection visa application when the department refused his partner visa application and the applicant said that he was advised by his agent that his partner visa case was ongoing through a review to the Tribunal.
Regarding his claimed incident of harm, the applicant told the Tribunal that it occurred on Christmas Eve. Christmas for Coptic Christians is celebrated on 7 January and the incident occurred on 6 January 2008. He and his girlfriend had been shopping and were on their way home. They were approached by a man who queried why they were holding hands. He brandished a knife and made demands for his wallet. The assailant made threats against the applicant and his girlfriend. Three or four people came from a nearby car that joined the assailant. The applicant had to hand over his property including his religious chain, his ring and bracelet. His girlfriend was slapped and the applicant was stabbed, receiving injuries on his finger and on his right knee. The applicant was told by the group that they were there to clean the area of Christians. The male assailants had long beards. The applicant passed out and woke up in a car being taken to a hospital.
The applicant insisted on first going to the police because his ring and bracelet had sentimental value and he hoped that by quickly reporting the matter, the assailants would be caught and his property returned. He told the Tribunal that he went to the police station and stayed there for two nights and three days. It was after that he was taken to the hospital.
The applicant was held in custody by the police. He reported that he had been attacked and pictures were shown to the applicant of the assailants and the applicant was able to identify his assailants. The police indicated that they knew these people. The applicant went to the police station between 8.30pm and 9.30pm. He was there until around 2.30am and then told by the police that he needed to stay longer. Two of the assailants were caught and the applicant saw them at the police station. The assailants were not handcuffed. After about an hour or so, the applicant queried what was happening and was told by police that they were still investigating. Later on, the police told the applicant that the assailants said that the applicant attacked them first and told the applicant that he would need to go to court. The police refused to let him call his parents and he was taken into the police cells. The assailants were not taken into the cells.
The applicant came to be released by not proceeding with the charges. He was told by the police that he needed to walk away and not speak the truth. He was assaulted while in custody. He was kicked by police at least twice a day. He said this happened to him because he was Christian. The assault made him feel terrible because he realised the Government was corrupt. He had never previously been assaulted or come into contact with police. After he had been released, he called his parents to pick him up. He had no contact with his parents until he was released.
He went to the hospital after being released and stayed there for a few hours. When he was at home, he was called by the assailants who had his phone and wallet. They told him that he was let go because the charges were dropped. The applicant was told that if he did anything further, or call the police again, the assailants would get him. If he went to the court, they would wait outside for him, and told him about a person that had recently been targeted by the Muslim Brotherhood. In the following weeks, the applicant saw his assailants around his house. His neighbour, who is a Muslim, told the applicant that he was being watched by those people and told him that those people had told the neighbour that the applicant would have to behave. After that, the applicant was called between 15 and 17 times a day with prank calls on the landline. He was harassed in the months that followed. The applicant said that although the assault happened in January 2008, he cannot return to Egypt because he was traumatised. Whenever he thinks of Egypt, he remembers the incident and the harassment. Because his identification card marks him as Christian, he will be discriminated against. He fears returning to Egypt.
The applicant did not submit any reports about the situation of Coptic Christians in Egypt in support of his protection visa application. The Tribunal has considered the contents of the DFAT reports which relevantly note the following:
There are no legal barriers to prevent Christians from being visible in public life, and a number of Christians have become prominent and influential in Egyptian politics and business.[2] DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means. Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities.[3] Notwithstanding the overall rise in the number of violence incidents in recent decades, including some high profile attacks, DFAT assesses that day-to-day life for most Copts in Egypt is not overtly affected by communal tensions. Most Egyptians, especially living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes (such as neighbourhood disagreements) can adopt religious overtones and escalate into community-level violence. This is particularly the case in poorer rural and urban areas. Spikes in communal tensions can also coincide with broader political upheavals.[4]
[2] 17 June 2019 DFAT Country Information Report on Egypt at 3.33
[3] 17 June 2019 DFAT Country Information Report on Egypt at 3.36
[4] 24 November 2015 DFAT Thematic Report on Egyptian Copts at 2.20
In response to the Tribunal’s view that the DFAT reports do not suggest that the applicant will be persecuted because of his religion, the applicant told the Tribunal that it did not have the whole picture, that he was being forced to live in an Islamic country and that because of the National Identity Card denoting his religion as Christian, he was more likely to be sacked or not employed on account of this identification.
FINDINGS AND REASONS
Although the Tribunal raised with the applicant the prospect that it may have concerns about his credibility in light of his previous criminal history concerning a dishonest offence, the Tribunal accepts that the applicant was intoxicated and engaged in opportunistic offending. The criminal history does not demonstrate that the applicant is inherently dishonest, and accordingly the Tribunal has given no weight to the applicant’s criminal history when assessing whether the applicant is a witness of truth. The Tribunal’s assessment of the applicant’s credibility has been based on the following reasons in combination.

First, the delay in seeking protection is considerable, and the applicant’s evidence about when he knew he could lodge a protection visa was inconsistent.
The Tribunal found the applicant to be flexible in his approach to giving evidence about when he knew that he could lodge a protection visa application. Initially, he told the Tribunal that he discovered that he could lodge a protection visa in Australia ‘5 or 6 months ago’, but then later told the Tribunal that he was aware that he could claim protection prior to his travel to Australia. Noting that the applicant arrived in 2008 but did not lodge his protection visa application until 2019, the Tribunal is satisfied that the reason the applicant initially told the Tribunal he became aware that he could claim protection in Australia ‘5 or 6 months ago’ was an attempt by the applicant to explain the reason for delay. However, given the applicant’s evidence then changed to declare that he knew that he could lodge a protection visa application before he left Egypt, the Tribunal was concerned that the applicant did not lodge his protection visa application soon after his arrival because he did not have a well-founded fear of persecution.
The Tribunal raised with the applicant the inconsistent evidence about when he knew he could claim protection, and the applicant said that when he came to Australia, he started study and did not need to lodge a protection visa application. He also said that he had his second student visa application, and his partner visa application and that this also accounted or the delay in lodging a protection visa. The applicant told the Tribunal that he considered lodging a protection visa in Australia and discussed this with the migration agent who helped him with his onshore student visa and partner visa applications, but she told him that if he lodged a protection visa and it was refused, he would lose everything.
The Tribunal raised with the applicant the fact that he had been granted a bridging visa on grounds that he was to depart Australia. He told the Tribunal that he did not agree to this bridging visa and was ‘forced’ to sign a departure document. The applicant told the Tribunal that the Department told him he had no other option. The Tribunal queried why the applicant would not lodge a protection visa at this point. The applicant told the Tribunal that he had a partner at that time and believed he was going to stay in Australia.
The Tribunal has considered the applicant’s evidence about when he knew he could claim protection in Australia, and his explanations for the delay in lodging the protection visa but is not persuaded by those explanations. The Tribunal finds it incredulous to believe that the applicant, who claims to have experienced harm in Egypt (and knowing that he could lodge a protection application in Australia) would delay lodging a protection visa application and instead remain in Australia on a student visa which is temporary in nature with the hope that he would be able to extend this visa, or use that as a pathway to some form of permanent visa. There is never a guarantee that a student visa will result in permanent residency. Similarly, a partner visa, which can be permanent, is never a guaranteed outcome.
The Tribunal does not accept that the applicant was counselled against lodging a protection visa by his migration agent, and in the Tribunal’s view, if the applicant had experienced the harm in Egypt as claimed, he would have lodged his protection visa application soon after his arrival, and not waited until all his migration options had been exhausted. The Tribunal’s concern about whether the applicant is a credible witness is compounded by his demonstrated flexible approach to the truth about when he knew he could lodge a protection visa in Australia.
Further, the Tribunal does not accept that the Department would grant the applicant a bridging visa on departure grounds if the applicant was unwilling to voluntarily leave Australia. To grant such a visa, the Department would have been satisfied that the applicant was willing to leave Australia. If the applicant expressed any reluctance to do so, the Tribunal is confident that the Department would not have granted the applicant the bridging visa and would have instead detained him in immigration detention to arrange his involuntary removal. The timing of this bridging visa, just as the cancellation of his student visa, the refusal of the permanent partner visa by the Department, would have been opportune times to lodge the protection visa. The applicant did not do so and the Tribunal is satisfied that the applicant delayed lodging the protection visa application because he did not fear returning to Egypt. This leaves the Tribunal to conclude that his claimed instances of past harm did not occur.
Second, the applicant has never previously claimed that he was harmed in Egypt until he lodged a protection visa application. In Tribunal case [number] concerning the refusal of his partner visa, ‘The Tribunal put to [the applicant] that given he was in a country where he had no support network because all his family were still in Egypt, he was young and he was caught up in a very traumatic series of events (concerning his marriage), why he did not return to his home country or where he would be supported by his family. [The applicant] said he did not want to go back to Egypt. His sister was now here as she had come on a student visa two years ago and his parents were in the process of trying to get a visa.’[5]
[5] AAT [case number]
The Tribunal was concerned about this response. To the Tribunal’s way of thinking, this would have been an opportune time for the applicant to say why he could not return to Egypt and detail what had happened to him there. It was, after all, a direct question from the Tribunal about his reasons for failing to return to Egypt.
The Tribunal adopted the procedure under s.424AA of the Act and raised the applicant’s previous evidence with him. The applicant said that he did not tell that Tribunal about the previous incident and his concerns because he did not think that it was that Tribunal’s job. The Tribunal understands this to mean that the applicant believed that this was irrelevant to the partner visa. The applicant also said that his agent told him to concentrate on the partner visa issue and that it was no one’s business.
The Tribunal is not persuaded by the applicant’s explanation. The Tribunal does not accept that the applicant’s migration agent would counsel him to withhold this information. If anything, it would appear that his claims of past harm would actually assist him to persuasively explain to that Tribunal why he had failed to return to Egypt. The question was direct and the applicant cited the fact that his sister was in Australia and his parents were in the process of obtaining a visa to leave. In the Tribunals’ view, had the applicant really experienced any of the harm he claimed, he would have said this to the Tribunal in his partner case. The Tribunal is not satisfied that the applicant is a witness of truth about his claims of past harm in Egypt.
Third, the applicant gave inconsistent evidence about when the attack occurred. The Tribunal acknowledges that the applicant, in both his written protection visa application and his oral evidence to the Tribunal claimed that the attack occurred on Christmas Eve. However, his oral evidence to the delegate at interview was very different, claiming that this attack happened at Easter. The delegate queried this oral evidence, indicating her concern about the change in the event. The applicant said to the delegate that he was trying to refresh his memory but that the event was Easter and not Christmas. He said that after he completed the application, he was thinking about it and realised it was Easter and not Christmas as he claimed in the written form. The delegate queried why he did not seek to correct the event at the start of the interview, given that she had asked him whether there was anything he wanted to add or change in his form. The applicant said there was not. It was only when he was confronted with this inconsistency by the delegate that the applicant attempted to explain the reason for the change in event. He said he did not raise it at the start of the interview because he did not want to interrupt the delegate and that putting down Christmas was a mistake. It occurred at Easter and not Christmas. He was not trying to be dishonest.
The Tribunal adopted the procedure in s.424AA of the Act and raised with the applicant that he had claimed to the delegate that the incident occurred at Easter, and not at Christmas as claimed in his written form and in his oral evidence to the Tribunal. The applicant said that it was an honest mistake, that the incident occurred at Christmas and that he had subsequently spoken to his parents about when this occurred and his mother told him it was at Christmas. When recalling the incident, he came to think it was about 4 or 5 months before he applied for a visa to come to Australia, which would make it Christmas and not Easter.
The Tribunal is not persuaded by the applicant’s explanation. While the Tribunal accepts that the passage of time may affect a person’s memory, the applicant has claimed one incident of assault by these assailants. The Tribunal finds it incredulous to accept that the applicant would get the events of Easter and Christmas confused. Given that the applicant was adamant in his claims to the delegate that the assault occurred at Easter, and then equally adamant to the Tribunal that the assault occurred at Christmas, the Tribunal can only conclude that the applicant, realising that he had given inconsistent evidence to the delegate, sought to remedy this by asserting to the Tribunal that what he wrote in his protection visa application form about the date was the truth, despite telling the delegate it was a mistake writing that the assault occurred at Christmas. The Tribunal comes to the conclusion that the applicant fabricated his claims of past harm, as it would be reasonable to expect consistency about the date of the assault if it were true. The Tribunal is not satisfied that the applicant was previously harmed in Egypt as he claimed.
Fourth, the applicant gave inconsistent evidence about events at the police station. He claimed to the Tribunal that he was detained for two nights and three days. He had no contact with his parents. He was released when he told the police that he would not proceed with the charges against his assailants. In his written protection visa application, he claimed he had been detained for two days and held in custody until the morning. In his interview with the delegate, he told the Tribunal that when he was in custody he was told by the police that if he dropped the charges they would let him go. He said that he was unsure of what to do and spoke to his mother who told him he should drop the charges. He then told the officers he would forget about everything and he was let go. The applicant never mentioned to the delegate that he was forced to sign a case dismissal document, nor did he tell the Tribunal that he was forced to sign such a document. The applicant never told the delegate that two of the assailants had been captured by the police and that he saw them at the police station.
The Tribunal adopted the procedure in s.424AA of the Act and raised with the applicant the difference in the evidence concerning his period of detention, whether he spoke to his mother during the period of detention, and whether two assailants were actually present at the police station. In the Tribunal’s view, this inconsistency went to the heart of whether the applicant was inventing his claims about past harm. The applicant said that he could not recall what he said at the delegate interview about the presence of two assailants at the police station, that what he was telling the Tribunal at hearing was the truth, and that differences between what he wrote in the written application and his oral evidence could be put down to the fact that he had 24 hours to lodge the protection visa. Regarding the failure to tell the delegate or the Tribunal that he was forced to sign a ‘case dismissal document’ as detailed in the protection visa application; he said that there was no document about the case, but that he had signed a document to collect his belongings from custody.
The Tribunal has considered the applicant’s responses to its concerns but is not persuaded by them. In the Tribunal’s view, seeing the two assailants at the police station, the assailants being taken into the police station and then the police flipping their attention to the applicant, resulting in his detention, is detail that would have been disclosed previously in the written application and to the delegate at interview, not only raised on the day of the Tribunal hearing. Further, how the applicant came to be released from custody would also be expected to be consistent. There is considerable difference between the applicant speaking to his mother who counselled him to drop the charges and the applicant being released as a result of this, and the applicant claiming that he never spoke to his mother in custody and only spoke to her after he had been released. The applicant, who told the Tribunal that he had never been in trouble with the Egyptian police previously, provided inconsistent evidence about how long his period of detention lasted. The Tribunal does not accept that someone who has never previously been detained by police would get the period of their detention confused or mixed up. The applicant writing that he had to sign a case dismissal document to get the charges withdrawn, but making no such claim to the Tribunal or the delegate, and then insisting that there was no such document to the Tribunal, is equally unconvincing. The Tribunal is not satisfied that the applicant is a witness of truth about his past claims of harm in Egypt.
Given the above concerns, the Tribunal put to the applicant its concern that he had fabricated his claims of past harm in Egypt as a means of remaining in Australia through a protection visa. The applicant denied that this was the case, placed his hand on the Bible and said that what he had told the Tribunal was what happened to him.
The cumulative effect of the Tribunal’s concerns about the applicant’s evidence as noted above lead the Tribunal to the inevitable conclusion that the applicant fabricated his claims for protection. The Tribunal does not accept that the applicant was ever assaulted by assailants in Egypt, that he was hospitalised and was treated for such assaults, nor that he went to the police to report the assault and was detained, harmed by the authorities, or that he was subsequently harassed by the assailants, that he left Egypt because of previous harm, or that he refuses to return to Egypt because he fears returning there on account of his past experiences. The Tribunal does not accept that the applicant has ever been harmed in Egypt on account of his religious belief, or indeed for any other reason. The Tribunal is satisfied that the applicant’s entire claims, insofar as they are grounded in his claimed past harm, have been manufactured as means to remain in Australia. The applicant is not a witness of truth when it comes to his past experiences in Egypt.
Having considered all the evidence, the Tribunal is not satisfied that the applicant has ever previously been harmed in Egypt on account of his religion.
However, the Tribunal does accept that the applicant is a Coptic Christian. The Tribunal accepts the applicant’s explanation for why he declared that he did not have a National Identity Card in his protection visa form, and there is nothing before the Tribunal to suggest that the copy of that document he produced was fraudulent. However, the Tribunal is not satisfied that Coptic Christians are persecuted in Egypt based on the information contained in the most recent DFAT reports. There may be some in Egypt who dislike Christians and hurl abuse at them. There may also be occasions when a non-Christian physically attacks a Christian on account of their religion. Some employers may look at a National Identification Card and decide to not employ someone because of their religion. However, the Tribunal does not accept that the applicant has ever experienced any such harm, and given that the Egyptian constitution includes a number of provisions which guarantee equal opportunity for all citizens without discrimination[6] and there is nothing in the two reports considered by the Tribunal to suggest that the authorities withhold protection from Christians, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Egypt on account of his religious belief.
CONCLUSION
[6] 24 November 2015 DFAT Thematic Report on Egyptian Copts at 3.2
Refugee
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).
Complementary protection
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 does not accept that the applicant has ever previously been harmed in Egypt, and is satisfied that his claims of past harm were fabricated by the applicant as a means of remaining in Australia. As the applicant has not previously been harmed as he claimed, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm if he was returned to Egypt. The Tribunal is satisfied that the applicant is of no interest to anyone in Egypt. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Nathan Goetz
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.
…

[2020] AATA 647

2 March 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice