2117179 (Refugee) - [2023] AATA 3432

2117179 (Refugee) [2023] AATA 3432 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Etienne De Villiers Hugo
CASE NUMBER:  2117179
COUNTRY OF REFERENCE:                   Egypt
MEMBER:James Silva
DATE:28 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 July 2023 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Egypt – Federal Circuit Court remittal – religion – Coptic Christian – societal discrimination and communal violence – brother-in-law converted to Islam – harassment and threats from brother-in-law and extremist associates – several members of extended family granted protection in Australia and several more forcibly converted or disappeared in Egypt – workplace discrimination and dismissal – mental health and treatment – lengthy visa and review processes – credibility – inconsistent, exaggerated, misleading or demonstrably false claims and evidence – delay in applying for protection – lawyer’s advice to focus on another visa application – passage of time – wife and children still living in home area with no harm or precautions – no current information about brother-in-law’s whereabouts – country information – political, economic and social conditions – low risk in major city – request for referral for ministerial consideration not accepted – direct application possible – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
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

The applicant is a [Age] year old man who claims to be a citizen of Egypt.
The applicant most recently arrived in Australia [in] December 2013, as the holder of a visitor (subclass 600) visa. On 14 September 2015, he applied for a protection (class XA) visa. On 30 September 2016, a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act), essentially on credibility grounds.
This is an application for review of that decision.
On 23 January 2020, the Tribunal (the ‘first Tribunal’, differently constituted) affirmed the delegate’s decision. The Federal Circuit Court set aside the decision, and remitted it to the Tribunal for reconsideration. The matter is now before the Tribunal pursuant to the order of the FCC.
For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
CLAIMS, AND CRITERIA FOR A PROTECTION VISA
The applicant is a Coptic Christian who claims to have experienced discrimination in Egypt, and to fear persecution and significant harm if he returns there in the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2117179 (Refugee)

Details

AGLC: 2117179 (Refugee) [2023] AATA 3432
Case: [2023] AATA 3432
Decision Date: 28 July 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Refugee Tribunal, which affirmed a delegate's decision to refuse the applicant a protection visa. The applicant, an Egyptian Coptic Christian, claimed he faced persecution due to his religious minority status and specific threats from his former brother-in-law, who had converted to Islam and allegedly associated with extremist groups. The applicant also raised concerns about societal discrimination and communal violence in Egypt, as well as workplace discrimination.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa, and if not, whether he was entitled to complementary protection. This required the court to assess the credibility of the applicant's claims, particularly those relating to threats from his former brother-in-law and his associates, and the general risk faced by Coptic Christians in Egypt. The court also had to consider the applicant's delay in applying for protection and the consistency of his evidence over time.

The court found significant issues with the applicant's claims regarding the threats from his former brother-in-law, noting a lack of detailed evidence to support the assertion that the entire extended family was at risk in 2001. The court also observed that the applicant's wife and children remained in Egypt without apparent harm, and that there was no current information regarding the whereabouts of the former brother-in-law. Furthermore, the court noted inconsistencies in the applicant's account of his employment history and a considerable delay in his application for protection, which was attributed to his lawyer's advice to pursue a different visa pathway. The court concluded that the applicant had not established a real chance of significant harm if returned to Egypt, and that the risk in major cities was low.

The Refugee Tribunal's decision to affirm the delegate's refusal of the protection visa was affirmed. The court did not accept the request for referral for ministerial consideration, noting that a direct application was possible.

Orders

Orders of the court

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Background

Background to the litigation

During this review, the applicant indicated that his primary focus was on the general treatment of Coptic Christians in Egypt. However, it is apparent from his original statement of claims and his more recent submissions that his family’s conflict with a brother-in-law who converted to Islam, and that person’s association with Muslim extremists, form an essential part of the applicant’s risk profile. The Tribunal therefore deals firstly with these specific claims.Family background The applicant claims that his former brother-in-law has an ongoing adverse interest in him, his immediate family (particularly his son [Master A]), and the extended family. This compounds the risks he faces as a Coptic Christian, if he returns to Egypt.Brother-in-law: marriage and threats Primary application: The applicant claimed that his sister [Ms D] married a Christian who later converted to Islam. He has since identified this person as [Mr X[9]]. After his conversion to Islam, [Mr X] pressured [Ms D] and their daughter [Ms Y] to also convert to Islam, threatening to kill them otherwise. [Ms D] fled to Australia in 2001, with [Ms Y], with the assistance of [Bishop Z]. They were granted protection in Australia. [9] The submissions include various other spellings of this name. It appears to be the Coptic Christian name ‘[Most common form of name]’, [English equivalent]. The applicant claims that [Mr X]’s persistent demands for [Ms Y] to be returned to him and convert to Islam, and the family’s refusal to comply with his wishes, has motivated [Mr X] and his Muslim Brotherhood associates to target the entire family. Evidence on review: The applicant has adhered to his claims about [Mr X]’s persistent interest in having [Ms Y] return to him, to convert to Islam. At hearing, he commented that [Mr X] still does not know where [Ms D] and [Ms Y] are. However, his interest in pursuing them is undiminished, despite the passage of time (22 years). For the reasons set out below (in particular, its analysis of events and the applicant’s actions since 2001), the Tribunal finds this claim problematic, and does not accept it at face value.Threats to the entire family The applicant claims that [Mr X] threatened to kill the entire (extended) family. As they were all at risk, they all made preparations to come to Australia in or around 2001. However, the bishop neglected to submit the paperwork for many years, and they therefore did not travel together. The applicant did not provide details or evidence that he and the entire family were at risk; that there were any preparations for all of them to migrate to Australia in or around 2001; that the bishop failed to submit the paperwork for this to proceed; or that the siblings currently in Australia came here because of these circumstances. The Tribunal therefore places no weight on this narrative as evidence that the applicant – and indeed all family members – were at risk of persecution or significant harm from [Mr X] in 2001, or at any time later. Rather, it now proceeds to consider events and the applicant’s conduct in the decades following [Mr X]’s alleged threats.Incidents in Egypt (before December 2013)

Evidence

Evidence Before The Court

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.CLAIMS AND EVIDENCEBackground The applicant is a [Age] year old man, who identifies as an Egyptian Coptic Christian. The applicant gave one residential address in Egypt, at [Address], [Suburb], where he lived until his departure from Egypt in 2013. This is the family home, which the Tribunal also refers to as ‘[Address]’, in a mixed Muslim-Christian neighbourhood in central Cairo. During this review, the applicant explained that this is an apartment building in which various family members (and their respective partners and children) occupy different levels. He claimed that it is unoccupied (for security reasons linked with his protection claims). Family members hold inherited shares; they have not discussed selling or renting it out. According to his protection visa application, the applicant attended primary and secondary school from [Year] to [Year]. From [Year] to [Year], he completed a [diploma] in [Subject], at an academy in his local area. The applicant wrote on his protection visa application that he worked as [an Occupation 1] in various companies, from 2005 and 2012; and from June to November 2012 at a [Work sector 1] company named ‘[Company 1]’. From November 2012 to December 2013, he claims to have been unemployed. (These circumstances form part of the applicant’s protection claims, discussed in detail below.) The applicant has given divergent information over time about his past employment; he explained that this was in part due to his reliance on other people to complete his paperwork, and also due to his poor memory and Egyptian employers’ poor record-keeping. In June 2023, he provided the following details:§ [Year] - [Year]: Work (two companies, one of them a [Work sector 2] company).§ [Year] – 2004: Work (two successive companies, in the first as a supervisor from mid-2002 to July 2003).§ 2004 (September) – 2011 (January): After returning to Egypt, the applicant started a [Work sector 3] workshop, which eventually failed. He also worked part-time as [an Occupation 2]; and from 2008, worked in [Work sector 1] (two successive employers).§ 2012 (June to December): Work in [Company 1], [Work sector 1] company.§ Periods of unemployment: [Year] – [Year]; 2004 (March to June): visit to Australia. 2011 (January?) – 2012 (June?), due to the 2011 Egyptian Revolution. The applicant implied that he was also unemployed during 2013. The applicant identified his wife and two children as his immediate family members. He has a son, [Master A], born in [Year] (now [Age] years old) and a daughter, [Miss B], born in [Year] (now [Age] years old). His wife and children remain in Egypt. The applicant’s parents are deceased. He has [siblings]. [Brothers and sisters] live in Australia[1]. At the time of application, the applicant wrote that one brother, [Mr C], referred to as ‘[Alias 1]’, remained in Egypt. He told the Tribunal that this brother went to Egypt in about 2009, and returned to Egypt occasionally. He submitted a copy of a [Country] permanent resident card for [Mr C, Alias 2] ([DOB]), stating that he had been a resident ([Category][2]) since November 2022. [1][1] The brothers are [Names, years of birth]; the sisters are [Names, years of birth]. One brother, [Mr C], is currently a [Country] resident. The applicant wrote at the time of application that he was living in Egypt, but told the current Tribunal he moved to [Country] in 2009 (possibly a reference to him visiting his daughter in [Country] from this time). [Mr C]’s name also appears in the form ‘[Alternative transliteration]’, which the Tribunal understands to reflect a variation of the same name. The full name on the [Country] residence car is [Alias 2].[2] [Country Immigration department reference and URL]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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