2104142 (Refugee)

Case [2025] ARTA 1444

2104142 (Refugee) [2025] ARTA 1444 (13 March 2025)

Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2104142

Tribunal:

General Member F Robertson

Date:

13 March 2025

Place:

Perth

Decision:

The Tribunal affirms the decision under review

Statement made on 13 March 2025 at 2:21pm

CATCHWORDS
REFUGEE – protection visa – Egypt – political opinion – participation in protests – arrested, interrogated, tortured, forced to confess, threatened, extorted and places of business destroyed – sentenced in absentia and travel ban – vague and inconsistent claims and evidence unsupported or contradicted by other evidence – late claims of being targeted by one police officer, paying bribe to depart, and persecution of wife and children – new passport and unhindered departure – rental income from properties disclosed in previous visa applications – uncooperative and evasive explanations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (c), (5), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271

AVQ15 v MIBP [2018] FCAFC 133; (2018) 266 FCR 83; 361 ALR 227

CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496

DQU16 v MHA [2021] HCA 10; 273 CLR 1

EIG17 v MICMA [2023] FedCFamC2G 804

Fox v Percy [2003] HCA 22; 214 CLR 118

MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505

MIEA v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA [1994] FCA 301; 34 ALR 347

Sundararaj v MIMA [1999] FCA 76

SZLVZ v MIAC [2008] FCA 1816

W375/01A v MIMA [2002] FCAFC 89; 67 ALD 757

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons

INTRODUCTION

  1. This is an application for review of a decision to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicant is a [Age]-year-old male who is a national of Egypt. The applicant arrived in Australia in September 2019 as the holder of a visitor visa. He applied for a protection visa in October 2019. Following an interview in October 2020, the application was refused by a delegate of the Minister for Home Affairs in March 2021.

  3. The applicant has applied for review of that decision. The application was heard on 12 March 2025. Following that hearing, I have determined that the decision under review should be affirmed. These are my reasons.

    CRITERIA FOR THE GRANT OF A PROTECTION VISA

  4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or…

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AGLC
2104142 (Refugee) [2025] ARTA 1444
Case
[2025] ARTA 1444
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Egypt, applied for a protection visa in Australia, claiming persecution by Egyptian authorities due to his alleged political activities. The Federal Court was tasked with reviewing the delegate's decision to refuse the applicant's visa application. The key legal issue was whether the applicant had a well-founded fear of persecution if returned to Egypt, warranting a protection visa. The court also needed to determine whether the applicant qualified for complementary protection due to a real risk of significant harm upon return.

The court found that the applicant's claims were inconsistent, lacking credibility. The applicant alleged multiple arrests and torture due to his participation in protests, but the court noted that he admitted not being a member of the Muslim Brotherhood and that the protests were minor and resulted in few arrests. Additionally, the court highlighted that the applicant failed to mention a police officer allegedly targeting him until the interview, despite his claims of ongoing persecution. The applicant's explanations for these inconsistencies were deemed unconvincing. The court also considered that the applicant had obtained a new passport, left Egypt without hindrance, and had rental income from properties, which contradicted his claims of persecution and destitution. The court concluded that the applicant's claims were vague, inconsistent, and unsupported by the evidence.

The court affirmed the delegate's decision to refuse the applicant's protection visa application, finding the applicant's claims unconvincing and inconsistent. The court held that the applicant did not meet the threshold for a well-founded fear of persecution, nor did he qualify for complementary protection. The court found that the applicant had not demonstrated a real chance of suffering persecution for reasons of political opinion or any other protected ground. The court's decision was based on the applicant's lack of credibility, inconsistencies in his claims, and the absence of substantial evidence supporting his allegations. The Federal Court ultimately upheld the delegate's decision, denying the applicant's application for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [Year] in Al-Gharbia, Egypt. He is married with [children], aged [Ages]. I accept these matters.Protection visa application and protection claims The applicant's protection visa application was lodged in October 2019. In support of the application, the applicant provided a written statement styled 'Personal Narrative of [the applicant]', in which he claimed to be unable to return to Egypt due to persecution by state authorities. In that document, the applicant claimed he was arrested three times, tortured, and threatened because of his activity in Egypt. Additionally, the applicant also provided the following in support of his application for the protection visa:(a)a document styled 'Personal Narrative' statement dated 23 September 2019; (b)a translated statement from the applicant's wife; (c)a translated statement from [A];(d)a translated statement from [B]; (e)a copy of the applicant's resume, marriage certificate, family register, national ID card and passport;(f)copies of birth certificates for the applicant's children;(g)various photographs which the applicant claims depict damage caused by the authorities to the applicant's home and business premises; (h)a construction permit dated April 2016 and an English translation of that document; (i)an undated medical report in relation to the period 21 November 2016 – 23 November 2016; (j)a lease contract dated 15 December 2016;(k)a police clearance together with an English translation dated 3 May 2019;(l)a 'certificate of criminal docket' dated 23 May 2019; and(m)an undated arrest warrant together with an English translation of that document. On or around 26 October 2019, the applicant provided English translations of documents which were in Arabic. The applicant claims his first arrest occurred in September 2015 after he saw his friends participating in a protest in Cairo.[10] He claims that after participating for about two hours, he was detained, blindfolded, and taken to a police station where he was stripped naked, interrogated and beaten for refusing to admit membership in the Muslim Brotherhood.[11] He claims that his detention occurred over five days and he was instructed to sign a document admitting his membership in the Muslim Brotherhood on three separate occasions.[12][10] Personal Narrative of [the applicant] dated 23 September 2019, [5].[11] Personal Narrative of [the applicant] dated 23 September 2019, [6]-[11].[12] Personal Narrative of [the applicant] dated 23 September 2019, [6]-[11].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant claimed that the Egyptian authorities have consistently targeted him destroying his livelihood, physically abusing him, and coercing him into a false confession. He asserts that returning to Egypt would put his life and family in danger, and on these grounds, he seeks protection in Australia.Delegate's decision The applicant was interviewed in relation to the application on 15 October 2020 with the assistance of an Arabic interpreter. The interview is referred to in the delegate's decision.[23] I have listened to that interview and aspects of the applicant's evidence at the interview is referred to in the delegate's decision.[23] Delegate's decision, p 3. The delegate refused to grant the applicant a protection visa on 31 March 2021. In so refusing, the delegate weighed concerns about the credibility of the applicant's claims, particularly what the delegate considered to be multiple inconsistencies. The delegate noted that the applicant claimed he was arrested three times between 2015 and 2016 for participating in protests and was tortured while in detention, that he was accused of being a member of the Muslim Brotherhood and coerced into signing a false confession. The delegate also noted the applicant further claimed that after his release, police continued to target him, seeking bribes and destroying his businesses. The delegate did not accept that the applicant had been arrested or detained for attending political demonstrations. It was noted that while Egypt monitors and detects individuals affiliated with the Muslim Brotherhood, the applicant admitted that he was neither a member nor a supporter of the group. Additionally, the delegate found the applicant’s explanations, namely that he joined demonstrations in Cairo in 2015 without knowing their purpose and later attended the “Movement of the Poor” protests in 2016 despite acknowledging the risks, unconvincing. The delegate also relied on country information that the protests were minor, heavily policed, and resulted in only a small number of arrests, which the delegate considered raised doubt about the applicant’s claim that he was detained for ten days. The delegate also considered that the medical evidence provided by the applicant did not support his claims. That was because the applicant claimed he was hospitalised for dehydration, yet the medical report did not support that fact. A significant element of the applicant’s case was his assertion that a police officer named [Mr A] had persistently targeted him. He alleged that this officer arrested him, destroyed his businesses, and later extorted him for bribes. He also claimed that the officer harboured an inappropriate sexual interest in his wife and sought to force him to divorce her. The delegate found this claim vague, inconsistent, and unconvincing. The delegate noted, and placed weight upon, the applicant's failure to mention the officer’s alleged interest in his wife during his interview for the first time and that aspect not being present in his written claims. The delegate did not accept the applicant's explanation for why that claim was not made earlier. Additionally, he could not explain why this particular officer would have targeted him over several years when he was neither politically active nor of significant interest to the authorities.

Ratio Decidendi

Legal Principle Established

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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b). [4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [Year] in Al-Gharbia, Egypt. He is married with [children], aged [Ages]. I accept these matters.Protection visa application and protection claims