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2318857 (Refugee)

2318857 (Refugee)

Case [2024] AATA 3189 18 January 2024

Judicial Review

Statutory Construction

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2318857 (Refugee) [2024] AATA 3189 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2318857
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Jason Pennell
DATE:18 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 January 2024 at 9.50am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian – particular social group – Coptic Orthodox Christian convicted of a serious crime – economic hardship – ostracism – fear of harm by relatives and Muslim community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 56, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
NAQJ v MIMIA [2004] FCA 946
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 57
VCAD v MIMIA [2004] FCA 1005
WZAOO v Minister for Immigration [2012] FMCA 1026

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

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a citizen of Egypt, applied for the visa on 6 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant appeared before the Tribunal on 21 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Fr A] and [Mr B].
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

CRITERIA FOR A PROTECTION VISA

5.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.
6.Section 36(2)(a) provides that a…

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 2318857 (Refugee)

Details

AGLC: 2318857 (Refugee) [2024] AATA 3189
Case: [2024] AATA 3189
Decision Date: 18 January 2024

CaseChat Overview and Summary

The applicant, a Coptic Orthodox Christian from Egypt, sought review of a decision by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear harm if returned to Egypt due to his religious beliefs, his conviction for a serious crime, and the resulting economic hardship and ostracism he experienced. He contended that he constituted a particular social group, defined by his religious affiliation and criminal conviction, and that he would face persecution on this basis.

The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a reason for which Australia has protection obligations. Specifically, the Tribunal had to consider whether the applicant's membership in the proposed particular social group, "Coptic Orthodox Christians convicted of a serious crime," met the criteria for a particular social group under the *Migration Act 1958* (Cth) and international refugee law. The Tribunal also had to assess whether the fear of harm from relatives and the broader Muslim community was objectively reasonable and linked to his protected characteristics.

The Tribunal affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's Coptic Orthodox Christian faith and his conviction for a serious crime, the Tribunal concluded that these factors, in combination with the alleged economic hardship and ostracism, did not amount to persecution for a Convention reason. The Tribunal found that the evidence did not support a finding that the applicant would face harm from the Muslim community or his relatives that rose to the level of persecution, nor did it establish that his proposed particular social group was one for which Australia has protection obligations. The Tribunal was not satisfied that the applicant's fear was objectively reasonable in the circumstances.

Orders