NLJV and Minister for Home Affairs (Migration)
[2019] AATA 3646
•18 September 2019
NLJV and Minister for Home Affairs (Migration) [2019] AATA 3646 (18 September 2019)
Division:GENERAL DIVISION
File Number: 2019/3897
Re:NLJV
APPLICANT
AndMinister for Home Affairs
RESPONDENT
Decision
Tribunal:Member Tigiilagi Eteuati
Date:18 September 2019
Place:Sydney
The decision under review is affirmed.
.............................[SGD]...........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision affirmed
Legislation
Migration Act 1958 (Cth) – s 197C, s 198, s 499, s 501, s 501CA
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
AXT19 v Minister for Home Affairs [2019] FCA 1423
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration & Border Protection [2017] FACFC 66
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Omar v Minister for Home Affairs [2019] FCA 279
Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
18 September 2019
background
This is an application by NLJV (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 25 June 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XA Subclass 866 Protection visa (“the Applicant’s visa”).
The Applicant is a 36 year old citizen of Egypt who was born in 1982. The Applicant arrived in Australia in August 2006. The Applicant’s visa was mandatorily cancelled under section 501(3A) of the Act on 9 June 2015. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. On 10 July 2015, the Applicant sought that the cancellation decision be revoked. An International Treaties Obligations Assessment (“ITOA”) was completed by the Department on 5 September 2016 to determine whether Australia owed non-refoulement obligations in respect of the Applicant. On 9 September 2016, the Applicant was re-notified by the Department of the cancellation of his visa on 9 June 2015 as the Department had determined that he had been incorrectly notified previously. On 24 September 2016, the Applicant, through his migration agent, made a representation seeking revocation of the mandatory visa cancellation decision.
On 20 June 2017, the Assistant Minister for Immigration and Border Protection personally refused to revoke the cancellation of the Applicant’s visa. The Applicant sought judicial review of this decision in the Federal Court and that application was dismissed on 15 March 2018. The Applicant brought an appeal from that decision in the appellate jurisdiction of the Federal Court and on 27 November 2018, the Full Court of the Federal Court allow the Applicant’s appeal, quashed the decision of the Assistant Minister refusing to revoke cancellation of the Applicant’s visa and directed that the Assistant Minister make a decision as to whether to revoke cancellation of the Applicant’s visa.
On 17 June 2019, the Department of Foreign Affairs and Trade published its latest version of the “DFAT Country Information Report: Egypt.”
On 25 June 2019, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa. On 1 July 2019, the Applicant applied to the Tribunal for review of that decision.
The matter was heard on 4 and 5 September 2019. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A19 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R3. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 35 of these reasons.
does the Applicant pass the character test?
Section 501(6) relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Federal Police National Police Certificate for the Applicant dated 4 January 2017 shows the following offences committed by the Applicant:
(a)On 10 June 2015, the Applicant was convicted of the following offences:
(i)Armed with intent commit indictable offence; the Applicant was sentenced to eight months imprisonment with a non-parole period of four months;
(ii)Destroy or damage property, the Applicant was sentenced to eight months imprisonment with a non-parole period of four months;
(iii)Stalk/intimidate intend fear physical etc harm, the Applicant was sentenced to eight months imprisonment with a non-parole period of four months;
(iv)Possess or use a prohibited weapon, the Applicant was sentenced to eight months imprisonment with a non-parole period of four months;
(v)Larceny, the Applicant was subjected to a two year good behaviour bond.
(vi)Common assault, the Applicant was subjected to a two year good behaviour bond.
(b)On 20 April 2015, the Applicant was convicted of the following offences:
(i)Two counts of contravene prohibition/restriction in AVO, the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months on each count.
(ii)Two counts of Stalk/intimidate intend fear physical etc harm, the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months on each count.
(iii)Destroy or damage property, the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months.
(iv)Common assault, the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months.
(c)On 24 March 2015, the Applicant was convicted of the following offences:
(i)Resist officer in execution of duty, the Applicant was subjected to an eight month good behaviour bond.
(ii)Contravene prohibition/restriction in AVO, the Applicant was convicted for previous offence after breaching section 10 bond and subjected to eight months good behaviour bond.
(iii)Common assault, the Applicant was convicted for previous offence after breaching section 10 bond and subjected to eight months good behaviour bond.
(d)On 21 February 2014, the Applicant was found guilty of the following offences:
(i)Contravene prohibition/restriction in AVO, the Applicant was found guilty without a conviction being recorded and subjected to a 12 month good behaviour bond.
(ii)Common assault, the Applicant was found guilty without a conviction being recorded and subjected to a 12 month good behaviour bond.
(e)On 25 January 2012, the Applicant was found guilty of common assault without a conviction being recorded and subjected to an 18 month good behaviour bond.
(f)On 12 October 2011, the Applicant was found guilty of drive with low range prescribed concentration of alcohol, fined $400 and disqualified from driving for three months.
I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of the Applicant
The following is a summary of the evidence of the Applicant. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the Applicant at the hearing in response to questions in cross examination and from the Tribunal. The summary also includes information which was in documents before the Tribunal.
The Applicant
The Applicant was born in Cairo in 1982. He arrived in Australia in 2006 at the age of 23 on a Class TU Subclass 572 Student visa. That visa allowed the Applicant to remain in Australia until 15 March 2009. On 18 February 2009 the Applicant made an application for a Protection visa.
The Applicant’s Protection visa application contained the following statements:
“When I was young I was physically and sexually abused by our neighbour was also my father’s friend. My neighbour’s name was [neighbour’s name redacted] and he was about my father’s age. [Neighbour’s name redacted] used to take me to his home and tell my father he wanted me to help him around the house. [Neighbour’s name redacted] had no sons and my father used to tell me to help him. The abuse continued till I was about 14 or 15 years old. I was very scared to tell any person because [neighbour’s name redacted] scared me since I was young - he kept telling me the police will put me and my father in jail - I never told any person in detail about this till I was older and met my long-term partner “Brad” (a pseudonym). I met Brad at military.
Other than my abuse by [neighbour’s name redacted], I first became sexually active at age 19 while I was at trade school. By this time I was very rebellious and I became involved in drugs & alcohol. My father tried very hard to get me to come closer to the church and become a better person but I felt a lot of internal anger. For my first sexual experience it was an organized event when a group of friends were having a party and they organized for prostitutes to be present. My experience with the prostitutes was very traumatic and I was unable to perform and I was overcome with fear when the prostitute attempted any move. This experience shook me significantly and forced me to start realising a number of issues I had with my sexuality. To that date I had ignored anything sexual. In my mind I knew I had some problems because I felt I had fear in relation to anything sexual. A few months after the prostitute incident I tried to approach another prostitute but I was still very fearful and could not perform sexually. I cried and told my history to the prostitute. I did not tell her who it was or the details but she understood and sympathised with me. The prostitute’s name was [prostitute’s name redacted] and I used to see her frequently and became very emotionally attached to her. There was no physical sexual contact. A few months after knowing [prostitute’s name redacted] she spoke to me about homosexuality. I had previously said to her that I felt more sexually comfortable thinking about males than female and she thought it may have been due to my abuse. [Prostitutes name redacted redacted] introduced me to [male prostitute’s name redacted] who I later knew to be a male prostitute. Till that time I never knew there was any such thing as a male prostitute. [male prostitute’s name redacted] and I became sexually involved together. I went with [male prostitute’s name redacted] a few times to various places in Cairo where he met his clients. Almost all his clients were married men. My relationship with the [male prostitute’s name redacted] was short lived because he was busy with his clients. Through [male prostitute’s name redacted] I met some other men and learnt how to meet other new people.
After 10 months of starting at the military I met Brad. We started a relationship very soon after meeting. Brad and I became very emotionally attached. Our relationship was very difficult to maintain and it was hard to remain discreet. Brad and I remained partners for about 18 months. During this time I met “Mike” (a pseudonym) who is also now in Australia and I had a brief relationship with him in Egypt and again here in Australia.
After little more than 12 months into our relationship Brad began to see other men occasionally. In early 2005 Brad’s brother, [Brad’s brother’s name redacted] saw Brad and another man together in a compromising situation. [Brad’s brother’s name redacted] told his family and Brad had a very difficult time with his family who forced him to marry under threats that they would report him to police. I lost contact with Brad after a few months but just before this in about May 05 my parents started hearing rumours about Brad and me. I parents were very upset and they wanted me to marry. My parents didn’t want to believe what they were hearing. I didn’t want to marry and I slumped into depression. I tried to change my life and I returned to the church. I tried to avoid any sexual contact and feelings. Feeling suffocated I wanted to travel. My relatives are in Australia so I decided to come and study in Australia. My family spoke to my relatives in Australia and tried to convince them to find someone for me to marry. When I first arrived in Australia I continued my attendance at church I tried to live a good life and I even gave up cigarettes. In February 2007 my relatives introduced me to “Natalie” (a pseudonym) with the intention that I get to know her and marry. Natalie was related by marriage. For the first few months our relationship started slow and with no pressure to marry. I was happy in the relationship but I had no sexual attraction. I tried hard at this relationship because I want to live a straight life but it was too difficult. I could only like Natalie as a friend and even though she was very attractive, I had no sexual interest. This pressure began to build up for me to marry Natalie I became anxious and in July 2007 I went to Oxford Street to find a man. I spent a month seeking males and I had 2 casual partners. I caught pubic lice from the last partner and that was enough for me to return to trying to live a straight life. I kept battling with my attempts to be straight but it was difficult. In September 2007 I first saw Mike in Australia. I tried hard not to fall into a sexual relationship with him and he also tried to support me. By October or November 2007, my relationship with Natalie was essentially over. I could not commit or offer her any sexual interest. I fell into depression and wanted to contact Mike but I tried to avoid doing so. In early December I was in Oxford Street and I saw Mike there. After this time we restarted a relationship which was going well until the unfortunate event described in the attached Stat Dec by “Tom” and “Jerry” (pseudonyms).
At this time I see Mike only on special occasion and I now have no partner.
I have now clearly chosen for my life to continue as a homosexual.
Due to the issues that occurred in mid-08 involving my flatmates at the time, I am now in serious trouble if I returned. These issues are outlined in the Stat Dec attached and I will forward my own Stat Dec about the issues. My family now know about my lifestyle. My flatmate who caused me problems spoke to my family in Egypt about my lifestyle and it also got to Mike’s family. This is one of the reasons why Mike and I ceased our relationship. Mike is now a good friend of Jerry who I have known since Egypt but we were never partners. After Jerry was granted PR in Australia he told his family about his lifestyle. Jerry’s family and my family know each other and they have been talking about our lifestyle.
My final point is that I was intending to lodge this application in early 2008 but the flatmate incident resulted in lots of threats to me and my migration agent so it was put on hold I will outline this in my Stat Dec.”
An ITOA was completed by the Department on 5 September 2016. The ITOA contained the following about information the Applicant had provided to the Department in interviews and in response to written questions:
“On 15 August 2015, the claimant was asked during his Detention Client Interview: "do you have any reasons why you cannot return to your country of nationality (country of residence)?" (copy at folios 72-78 of file CLF2015/33313). He appeared to make no reference to his 2009 protection claims, instead stating:
·Fighting in Egypt between Christian and Muslims;
·Someone (Max) in Egypt pay another person to kill him, so he fears his life if he goes back to Egypt.
An ITOA interview was conducted with the claimant on 27 June 2016, with the assistance of an Arabic interpreter (see ADD2016/859841). The interview was conducted via telephone as, at this point in time, the claimant was held at Wickham Point Immigration Detention Centre in the Northern Territory. The claimant was asked a number of questions about his 2009 protection claims during this interview:
·He was asked whether he wrote his initial protection claims, as these claims were written in proficient English and he had indicated in 2015 during a Departmental interview that he was not proficient in written English (see folio 73 of file CLF2015/33313). In response to this question he stated: "I have written it in Arabic and the lawyer put it in English".
·He was asked whether he was attracted to women and men, or just men. He stated "just men".
·He was asked to describe when and how he first discovered he was homosexual. He indicated that he discovered his sexuality in Egypt around 1997 or 1998 when he was between 13 and 15 years of age. He stated that he watched "sex movies" from a young age and did not enjoy the sexual relationships between men and women. He indicated that he started watching a sex movie with Mike and that after finding it really enjoyable, he and Mike started having sex together.
·He was asked to recall the first person he confided in regarding his sexuality. He stated that it was Mike and also his father's friend, [father’s friend’s name redacted] (who abused him). It was put to the claimant that this account differed from his 2009 protection claims. I explained to the claimant that in his protection application, he had indicated that a female prostitute named [prostitute’s name redacted] was the first person he confided in regarding his sexuality and that this was when he was 19 years old, not 13 to 15. In response, he indicated that he had sexual relationships before he was 19, when he was 13 or 15 and that [prostitute’s name redacted] said she could help him, but it didn't work.
·He was asked to recall his first sexual experience with a man. He stated that Mike was the first man he had sex with and that Mike introduced him to other "gay guys" but he did not have relationships with them, as he did not feel comfortable with them. It was put to the claimant that this account differed from his 2009 protection claims. I explained to the claimant that in his protection application, he had stated that he first had sex with a male prostitute named [male prostitute’s name redacted]. He was asked to explain this discrepancy. He indicated that Mike knew [prostitute’s name redacted] and [male prostitute’s name redacted] and that there was a party at [prostitute’s name redacted]'s house. He explained that Mike took him there as he was trying to seek help from [prostitute’s name redacted] to "make him a man". He stated that [prostitute’s name redacted] tried to kiss and cuddle him but he did not have any feelings and that this is when she said he was gay.
·He was asked to clarify when and where he had a relationship with an individual named Brad. He stated that he had a relationship with Brad in Australia in 2008. He was asked to specify whether he and Brad had a relationship in Egypt. He replied that he did not have a relationship with Brad in Egypt, only in Australia and that Mike knew Brad in Egypt.
·He was asked whether he had been in relationships with men in Australia. He replied yes, "a lot". When asked to provide further details he stated that he used to meet men in Oxford Street and that he could not remember all of their names. He stated that he use to stay with these men at hotels and that he was surprised to meet Mike in Australia, as well.
·He was asked to describe his relationship with Mike. He stated that he first met Mike in Egypt and that he met Mike again in Australia, in Oxford Street. He indicated that their relationship lasted between one and two years and that they lived together in Australia. He stated that it was a good relationship and that they were happy until “Max” (a pseudonym”) (their housemate) told their families in Egypt about their sexuality. He indicated that he and Mike used to hang around Oxford Street, watch sex movies together and pick each other up from work. He was asked what Mike's surname was and the name of Mike's employer. He stated that he could not remember Mike's surname, as he used to call Mike and his other gay Egyptian friends (Jerry and Tom) by their first names, only. He indicated that Mike used to move from one job to another, working as a cleaner, a shop assistant in a fruit shop and a petrol station employee in locations such as Punchbowl and Alexandria.
Unfortunately, due to a trial fire evacuation in Melbourne on 27 June 2016, the claimant's ITOA interview could not be completed. As such, the claimant was provided with an opportunity to respond to my remaining interview questions in writing. On 18 July 2016 he and his migration agent, Therese Nicolas, were sent a letter, detailing my remaining six questions (see folio 87 of file CLF2015/33313). Tasked:
1. I note you have been convicted of domestic violence related offences in Australia. I note that the judge who sentenced you in April 2015, Magistrate McIntyre, stated in his sentencing remarks that you had committed violence against a female who you had been "in and out of a relationship with" from his understanding. Magistrate McIntyre stated that you hit your female victim numerous times with a broom which you had retrieved from the corner of the unit that you and the female shared. This information is potentially adverse, as it conflicts with your claim that you are homosexual. You are invited to comment in writing.
2. I note you appeared in court in June 2015 in relation to further domestic violence related offences. Information before me suggests that these offences were committed against a different female victim. This information is potentially adverse, as it conflicts with your claim that you are homosexual. You are invited to comment in writing.
3. I note you were asked during a Detention Client Interview in August 2015 whether there were any reasons why you could not return to Egypt. You made no reference to your sexuality when asked this question. Instead you stated that you could not return due to a) fighting between Christians and Muslims in Egypt and b) someone in Egypt had paid another person to kill you. These new claims suggest your previous protection claims relating to your sexuality were not genuine. You are invited to comment in writing.
4. Do you genuinely fear harm in Egypt because someone has paid another person to kill you and because there is fighting between Christians and Muslims?
5. If so, what is the name of the individual who has allegedly been paid to kill you? Who paid him to kill you? When did this occur? Why? Do you have any evidence to substantiate this claim?
6. Why would fighting between Christians and Muslims in Egypt put you at particular risk of harm? Do you have any evidence to substantiate that you are a Christian?
The claimant's migration agent provided a response to these questions via email on 3 August 2016 (see folios 91-94 of file CLF2015/33313). In response to question one she stated:
The female referred to by Magistrate McIntyre is [Victim 1]. [The Applicant] met [Victim 1] towards the end of 2010. At no time did a romantic relationship occur between them nor did they cohabit. [Victim 1] was divorced, had children and had a disability. [Victim 1], who is of Islamic faith, was in dispute with her family because she did not observe Islam as expected by her family. [Victim 1] resided at [Victim 1’s address redacted] and [the Applicant] resided at [a different address]. [The Applicant] felt sorry for her and eventually became her official carer.
...it does not appear that the Magistrate did specify a spousal or intimate relationship. [The Applicant] explains that reference to "in and out of a relationship with" arose due to the fact that [Victim 1]'s brothers were pressuring [the Applicant] to convert to Islam.
...it is essential to note that for cultural and religious reasons, it would have been highly unlikely and almost impossible for [the Applicant] and [Victim 1] to be involved in any sort of intimate relationship. Apart from the fact that [the Applicant] is homosexual, [Victim 1]'s family and community would not under any circumstances allowed contact between the two if they as much as suspected any romantic involvement without marriage.
Clearly a misunderstanding occurred due to the fact that the nature of the relationship between [the Applicant] and [Victim 1] was not specified.
In response to question two, Ms Nicolas stated:
[The Applicant] is uncertain of the offence and court appearance in June 2015 referred to in question 2...
[The Applicant] claims that the only incident that he can recall is a dispute with a female in approximately October 2014. [The Applicant] explains that he was waiting outside a church to speak to the priest. A young lady approached him and started to talk to him about Islam. He told the lady that he was not interested but the lady was persistent. Eventually [the Applicant] began to suspect that [Victim 1]'s family had sent this lady to harass him. A non physical dispute eventuated and police became involved. [The Applicant] became frustrated unable to explain the situation to the police and he then swore at police and was taken to police station. [The Applicant] can not recall many details of this incident and I do not have access to any police report.
In response to question three, Ms Nicolas stated:
[The Applicant] provided two reasons for not wanting to return to Egypt .The first was based on Christian Muslim tensions in Egypt. This is a real issue for all Christians in Egypt who suffer discrimination and some who suffer serious persecution. This is not a new claim as it is common to all Christian Egyptians to have this fear. This issue was not raised at the time of his PV application because at the time his reason for fear to return was his sexuality and not religious reasons. Since his PV application, religious tensions in Egypt have increased significantly.
The second reason given by [the Applicant] is absolutely not a new claim. In his original PV application [the Applicant] clearly stated that the reason that he was applying for protection was the fact that a person in Australia had told his family and the family of his partner, Mike, at the time that they are homosexual. Mike's family blamed [the Applicant] and had commissioned a person to kill him. These claims have been outlined in his original Protection visa application.
In response to question four, Ms Nicolas stated:
Both reasons that [the Applicant] fears harm if he were to return are very real reasons. Religious tensions are real in Egypt Christians are a minority group and state protection is not effective. In assessing the chance of harm to an individual, that person's specific circumstances need to be considered. The following are issues [the Applicant] will face if returned to Egypt
1. A serious mental disorder that requires treatment and monitoring with is very difficult to obtain in Egypt.
2. History of substance abuse which is rife in Egypt.
3. Has been disowned by family in Egypt, as evidenced by the fact that he has not returned to visit family or for the funeral of his father, hence no family support.
4. Long term absence from Egypt resulting in diminishing employment prospects.
5. Accommodation difficulties. Will be considered a stranger and outcast with no history or family in Egypt hence landlords will not be willing.
Given the above personal circumstances, [the Applicant]'s mental illness is highly likely to be exasperated and he succumb to substances abuse. His mental and emotional situation is one that will make him a target for certain extremist Islamic groups in Egypt that prey on the disadvantaged...
Apart from having no family or community support in Egypt, it will be very difficult for [the Applicant] to find and stability in a relationship. Due to his mental illness, [the Applicant] has only been able to establish a series of short term relationships in Australia. Being homosexual his options in Egypt are even further diminished
In relation to fear of being killed by a person specifically paid to do so, this remains a reality. If the family of [the Applicant]'s previous partner become aware of his return then attempts to kill him will be made. The family that have vowed to kill are from Upper Egypt where revenge killings occur even after generations. Family honour surpasses all other issues in Egyptian culture. This is evidenced by the fact that [the Applicant]'s only relative in Australia has refused to have anything to do with his nephew.
In response to question five, Ms Nicolas stated:
Please note answered to this question were all addressed at time of PV application. The actual name of the persons hired is not known. Families hire various "thugs" to undertake this type of procedure.
Finally, in response to question six, Ms Nicolas stated:
[The Applicant] does not have in his possession any documentation that he is a Christian however copies of his Egyptian passport which are with DIBP specify that he is a Christian.”
The Applicant gave evidence at the hearing about his sexual history.
The Tribunal notes that it was very difficult to follow the Applicant’s evidence at hearing. The Applicant’s evidence was often vague, evasive and inconsistent. The Applicant would often give an answer to a question only to change that answer, especially once evidence of a prior inconsistent statement was put to him.
The Applicant indicated that he met Brad in Egypt when he was about nine or 10 years old. He said that Brad lived in the same area is he did. He said that Brad introduced him to Mike in 1992, 1993 or 1994 when he was about 12 or 13 years old. He said that his first sexual experience was with Brad. He said that they would touch each other over their clothing. He said that later, he “did everything” with Mike. The Applicant appeared to be evasive when he was asked how old he was when he had his first sexual experience with Brad. First he said that they were very young when they had their first sexual experience. He then said that he was not very young but that it was before he was 17 years old. He then said he was 13 years of age when he had his first sexual experience with Brad.
When asked how old he was when he had a sexual experience with Mike, he answered that he had first had his first sexual experience with Mike in about 1995 or 1996. He said he was about 15, 16 or 17 when that experience occurred.
The Respondent’s solicitor asked the Applicant whether he had sexual relations with anyone else in Egypt. The Applicant said that he had not. He said that he could not do so with anyone other than Brad and Mike because he was scared. The Tribunal asked the Applicant to confirm that he did not have sexual experiences with anyone in Egypt other than Brad and Mike. He indicated that he had been abused by his father’s friend when he was young but confirmed that he had only had sexual experiences with Brad and Mike in Egypt. The Respondent’s solicitor again asked the Applicant to confirm that the only sexual experiences that he had in Egypt were with Brad and Mike. The Applicant again confirmed this was the case.
The Applicant was asked whether he had ever had a relationship with a woman. The Applicant said that he had a relationship with a woman named Natalie in Australia which had been arranged by his uncle. He suggested that it was an arranged marriage. He then went on to say that he had refused the marriage. The Tribunal notes that this evidence was consistent with the evidence in his Protection visa application where he indicated that he had a relationship with a woman named Natalie which have been organised by his family but that he had no sexual interest in Natalie. It also appears to be consistent with a statement by “Steve” (a pseudonym) which indicates of the Applicant was in a relationship with Natalie but that he had broken up with Natalie. The Tribunal notes that this evidence was inconsistent with the evidence provided by the Applicant in a statutory declaration made on 6 August 2019 in which the Applicant indicated that he had not had a relationship with any woman.
It was put to the Applicant that in his Protection visa application the Applicant claimed that he had become sexually active at the age of 19 when the Applicant had attended a party where prostitutes were present. The Applicant denied this and said that he had been sexually active before the age of 19 and before he attended the party.
The Respondent’s solicitor put to the Applicant that he claimed in his Protection visa application that he had a traumatic experience with a prostitute and was unable to perform sexually. The Applicant denied this and said that the prostitute had come to the conclusion that the Applicant was gay from speaking with him.
The Respondent put to the Applicant that in his Protection visa application he had claimed that a female prostitute had introduced him to a male prostitute. The Applicant agreed but said that he did not know that the male prostitute was a prostitute. The Respondent put to the Applicant that in his Protection visa application he said that he had had sex with the male prostitute whereas at the hearing the Applicant had said that he had only had sex in Egypt with Brad and Mike. The Applicant claimed that he had sex with the male prostitute. He said that he had misunderstood the question as to whether he had sex with anyone other than Brad and Mike and that despite both the Respondent’s solicitor and the Tribunal clarifying on a number of occasions that the Applicant’s evidence was that he only had sex with Brad and Mike in Egypt, he had thought the question had been whether he had had sex with anyone else while he was under the age of 18.
The Respondent put to the Applicant that in his Protection visa application he had said that he had met Brad 10 months after he started military service when he was in his early twenties whereas during the hearing the Applicant had said that he met Brad when he was nine or 10 years old. The Applicant indicated that this must have been a mistranslation as he had met Brad a long time before he joined the army.
The Respondent’s solicitor put to the Applicant that in his Protection visa application he had claimed that he had a relationship with Brad for about 18 months after they met in the military. At first the Applicant indicated that they had been in a relationship during that time but then said that he had not been in a relationship with Brad during his military service.
It was put to the Applicant that in his Protection visa application he had indicated that he met Mike during his 18 month relationship with Brad during his military service. The Applicant denied this and said he had known Mike since 1994 or 1995. He then claimed that he had known Mike from 1993 or 1994. The Tribunal notes that the Applicant had previously told the Tribunal that he had met Mike in 1992, 1993 or 1994.
It was put to the Applicant that, in a departmental interview with the Applicant 2016, the Applicant indicated that he had met Brad in Australia in 2008 and had a relationship with him here. The Applicant indicated that this was incorrect and said that he had known Brad in Egypt.
The Respondent’s solicitor asked the Applicant whether he could remember the names of any of his gay friends in Australia. The Applicant said that he could not remember any of their names.
The Respondent’s solicitor asked the Applicant whether, other than Mike, there were any men the Applicant had seen on repeated occasions and had sexual interactions with. He said that there was a Lebanese man but he could not remember his name.
The Respondent’s solicitor asked the Applicant when he stopped going to Oxford Street to find men to sleep with. The Applicant indicated that he stopped going to Oxford Street in 2010 after he had an operation.
The Respondent’s solicitor asked the Applicant whether he had any further connection with homosexual people after his operation in 2010. The Applicant said that he did. He said that he met two Egyptian men but he did not have sex with either of them because they were both married.
The Respondent’s solicitor asked whether the Applicant had had a relationship with any other men after 2010. The Applicant said that he had a relationship with an Egyptian man which began in 2010 and continued until 2011. Later he said that the relationship ended in 2012. The Respondent’s solicitor asked the Applicant the name of this person and the Applicant said that his name was Mike, coincidently the same name as a man that he claimed to have had sexual relations with in both Egypt and Australia. He could not tell the Tribunal Mike’s surname.
The Respondent’s solicitor asked the Applicant how he met the second Mike. The Applicant indicated that the husband of his migration agent had introduced them and that the second Mike wanted help with a visa application. The Applicant claimed that the husband of his migration agent wanted the Applicant to take the second Mike to Oxford Street to introduce him to people. He said that his migration agent’s husband wanted him to take the second Mike to Oxford Street so that the Applicant could observe Mike there to determine whether the second Mike was a “genuine homosexual”.
The Tribunal indicated that this narrative seemed difficult to believe and asked the Applicant whether his migration agent or her husband had someone take the Applicant to Oxford Street in order to ascertain whether the Applicant was gay.
The Applicant suggested that his migration agent’s husband could have sent the Applicant to Oxford Street with the second Mike to ascertain whether the Applicant himself was gay.
The Applicant said that when he arrived in Australia in August 2006 he resided with his uncle. He said that he studied English for some time but all of his study ceased in 2007. The Applicant said he met the Mike that he had known in Egypt again in around December 2007. He said that he moved in with Mike in a group share house in around May 2008. The Applicant indicated that in mid-2008, another flatmate, Max, had stolen from him. He indicated that he confronted Max and that Max had threatened to tell others, including the Applicant’s family in Egypt, that the Applicant was gay. The Applicant indicated that Max had done so in mid-2008. The Applicant indicated that he moved out of the share house about a week after his fallout with Max in mid-2008. However, the Applicant had previously indicated that he remained in that house until December 2008.
The Applicant indicated that his relationship with Mike was strained after this time as he was angry that Mike had not told him that they would be living with other people in the share house. He was also angry that Max had stolen the Department’s decision containing the Applicant’s claims to be homosexual from Mike and sent them to his parents. He said that his parents knew from mid-2008 that the Applicant was gay.
However, previously during the hearing, the Applicant had indicated that while his parents may have had suspicions that the Applicant was gay when he was in Egypt because of the company that he kept, they did not discover that he was gay until they received a copy of the Department’s decision, dated 11 January 2010, granting the Applicant a Protection visa. The Tribunal notes that later on during the hearing the Applicant suggested that he understood that he had been granted a Protection visa in around March 2009 after he was interviewed by Departmental officers.
It appears that the Applicant’s claim that his parents discovered that he was homosexual through Max sending them a copy of the Protection visa decision in either 2010, when the decision was made, or in March 2009, when the Applicant believed he was granted the visa, is inconsistent with the Applicant’s claim that his parents were informed by Max that the Applicant was gay in mid-2008.
The Tribunal notes on the first day of hearing the Applicant indicated that he believed that his migration agent had read the completed Protection visa application to him before he signed it.
On the second day of the hearing, when it had been put to the Applicant that there were a number of inconsistencies between his evidence at the hearing and the claims in his Protection visa application, the Applicant indicated that his migration agent had not read the completed application back to him. At first, he indicated that he wrote all of the claims in Arabic, that this was translated into English and entered into the form and the migration agent then contacted the Applicant to come in and sign the form once it had been completed. Later, the Applicant said that when he signed the form, it was blank and that he signed a blank application form which was later completed by his migration agent. The Applicant went on to say that many of the claims made in his Protection visa application were untrue and were incorrectly or fraudulently translated and recorded in the application form. The Tribunal notes that if this were true, which the Tribunal does not accept, it would have meant that the Protection visa that the Applicant was granted was granted upon the basis of false information. However, the Tribunal rejects the Applicant’s claim in this regard. The Tribunal notes that this explanation had never been offered by the Applicant prior to the hearing. Rather, he and his representatives had asserted that the inconsistencies were due to the Applicant’s mental state and the medication that he was taking.
Relationship with Victim 1
The Applicant said that after he gave up his schooling in 2017 he began to work. He said that he worked at a car wash and as a mechanic between 2008 and 2009. Initially, the Applicant said that he did not work in Australia after he worked as a mechanic in 2009. He confirmed this on a number of occasions. The Respondent’s solicitor then asked him how he injured his hand on 2014. The Applicant then said that he injured his hand while working in the construction industry. The Applicant then admitted that he had returned to work after 2009 despite having just denied so a number of occasions.
The Applicant said that he began working at a petrol station around the end of 2010 where he would work for two or three days a week. He said that through a fellow employee at the petrol station, he found a job in construction in 2011. He said that he worked in construction between 2011 and 2014 when he injured his hand while working. He said that whenever he did not have construction work, he worked as a removalist. The Applicant indicated that he had been receiving Newstart allowance from Centrelink from 2009.
The Applicant’s father passed away in September 2010.
The Applicant said that he met Victim 1 at the end of 2010. He said that she had approached him in a park while he was exercising but that he ignored her. The Applicant said that a workmate with whom he worked between 2011 and 2014, but whose name he could not remember, introduced him to Victim 1. The Applicant said that the workmate convinced him to move in with Victim 1 so that he could claim to be her carer and receive an increased amount from Centrelink to what he was receiving on Newstart.
The Applicant indicated that he moved in to Victim 1’s house in about March 2011. He said that he was receiving a carer payment from Centrelink from that time. He said that he was required to move into Victim 1’s house as he was informed that he would not be able to secure carer payments if he did not do so. This evidence contradicts the evidence provided by the Applicant through his migration agent in 2016 that the Applicant never cohabited with Victim 1. The Applicant claimed that he lived in the double garage of Victim 1’s house. The Applicant claimed that he told Victim 1 before he moved into the house that he was gay and that there could be no relationship between them. Indeed, the Applicant gave evidence that he and Victim 1 were never friends and that he was simply her carer.
When asked why Victim 1 needed a carer the Applicant indicated that he did not know. He could not identify any condition that afflicted Victim 1. The Applicant said that Victim 1 was a drug addict and that she had applied for a carer so that she could obtain more money through Centrelink to feed her drug habit.
The Applicant said that there was an agreement between himself and Victim 1 whereby once the carer payment was made into his account every fortnight, he was required to give Victim 1 all of the money which was in addition to what he would have received on Newstart. He was also required to pay an additional $50 per week to Victim 1 for rent and expenses. The Applicant indicated that he had been receiving between $500 and $600 on Newstart per fortnight before the arrangement with Victim 1. He said that he was being paid between $700 and $800 per fortnight as a carer. He said that once he moved in with Victim 1, he was giving her between $200 and $300 a fortnight in addition to $50 a week for rent and expenses.
The Tribunal asked the Applicant how the money was paid to Victim 1. The Applicant indicated that he gave Victim 1 his bank key card and she would use the key card to purchase items and withdraw money. The Tribunal asked the Applicant why he gave her his key card instead of simply paying her the money she demanded. He said that the first time that he had done so Victim 1 made false accusations against him to police which resulted in him being the subject of an Apprehended Violence Order (AVO). The Applicant indicated that Victim 1 had taken out AVOs against the Applicant two to three times a year and that she had made false reports to police about him on many occasions between 2011 and 2014.
The Applicant indicated that he had been satisfied with the money that he had been receiving from his employment and Newstart prior to acting as Victim 1’s carer. He said that once he entered into his agreement with Victim 1, he was worse off financially. He said that from approximately $700 he would receive on the carer’s benefit, Victim 1 would take $250 leaving the Applicant with $450. The Applicant said that he used to withdraw about $100 for cigarettes and fuel, leaving him with $350. He said that Victim 1 would then use the remaining $350 for shopping or would withdraw the rest of his money leaving him with no money at all.
The Tribunal put to the Applicant that, if he was financially better off before he entered into the agreement with Victim 1, if he and Victim 1 were not even friends, if Victim 1 made false accusations against the Applicant on multiple occasions every year and had AVOs taken out against him on multiple occasions every year, it seemed difficult to believe that the Applicant decided to remain living with Victim 1 for three or four years unless he was, in fact, in a de facto relationship with her.
The Applicant said that Victim 1 controlled him with drugs. This was the first time this claim had been made by the Applicant. The Tribunal asked the Applicant what he meant when he said that Victim 1 controlled him with drugs. The Applicant said that Victim 1 took his key card and took all his money so that she could buy drugs for herself leaving him unable to pay for rent somewhere else.
The Applicant claimed that he had used marijuana before he met Victim 1. However he said that Victim 1 introduced him to heroin and ice. The Applicant said that the last time that he took ice was in April 2014 before Anzac day. The Applicant said that by that point he was no longer taking heroin but he was still smoking marijuana up until the end of May or the beginning of June, 2014. The Applicant said that this was the last time that he consumed any form of illicit drugs.
The Applicant claimed that he stopped living with Victim 1 in late 2014.
Criminal History
The Applicant claimed that he had never been violent towards Victim 1 and had never threatened her. He said that he may have raised his voice towards her when she would spend money on drugs rather than on household expenses. He said that each of the allegations made by Victim 1 against him were false allegations.
The Respondent’s solicitor pointed out that in his statement of 6 August 2019, the Applicant had indicated that he was sorry for his behaviour that resulted in criminal convictions and that he understood that violence of any sort against men or women was unacceptable. The Respondent’s solicitor asked why the Applicant had written this if he had never been violent towards Victim 1. The Applicant said that he was apologising for having raised his voice and that he accepted to be Victim 1’s carer.
The Respondent took the Applicant to the police records regarding the assault charge for which he was found guilty on 25 January 2012.
The police report indicated that the Applicant had been in a domestic relationship with Victim 1 for 11 months at the time. The report indicated that on the evening of 31 October 2011, Victim 1 called the Applicant by telephone on a number of occasions asking when he was planning on coming home. The Applicant indicated that he was playing cards and drinking with his mates. The report states that the Applicant refused to return home. The report states that Victim 1 called a female friend and asked her friend, who did not know the Applicant “to talk to the accused over the phone and get him to meet up with her. The victim wanted to see if the accused would meet up with her as the victim believe the accused might cheat on her.”
Pausing for a moment, there are a number of indications in the police report that the Applicant was in a romantic relationship with Victim 1 and that he was not gay. First, the police report indicates that the Applicant had been a domestic relationship with the victim for the past 11 months. Secondly, Victim 1’s actions in repeatedly calling the Applicant and asking him when he was going to come home are more consistent with the actions of a romantic partner rather than of a person calling their carer. Third, Victim 1 was concerned that the Applicant may cheat on her. Fourth, it appears that Victim 1 tried to entrap the Applicant into showing an interest in her female friend by having the female friend call the Applicant asking him to meet up with her. The Tribunal considers that it is very unlikely that Victim 1 would have done so if, as the Applicant has claimed, she had always known that the Applicant was gay.
The Applicant did not meet Victim 1’s friend and instead returned home and accused Victim 1 of arranging for one of her friends to call him. The Applicant seized Victim 1’s phone and left the house, returning a short time later. The Applicant told Victim 1 that he was packing is clothes and moving out. He then walked upstairs to the bedroom and started packing is clothes. Victim 1 tried to stop him from leaving and asked him to stay. The Applicant returned downstairs and Victim 1 went down shortly thereafter. When Victim one got downstairs, the Applicant was holding a jerry can full of petrol and demanded that Victim 1 call her female friend. Victim 1 refused and the Applicant doused her in petrol. As he did so he stated “if you don’t bring the girl, I’m going to put you alight. You and your kids.” The Applicant possessed a lighter at this point and Victim 1 was extremely fearful and begged the Applicant not to set them alight.
When the Respondent’s solicitor asked the Applicant whether he remembered this incident, the Applicant said “I believe it was the first - the first time, the first incident.” The Applicant said that whatever Victim 1 had told police about his behaviour that evening were lies.
The Respondent took the Applicant to the police records regarding the assault charge and charge for contravening and AVO for which he was found guilty on 21 February 2014.
The police report indicated that the Applicant had been in a de facto relationship with Victim 1 for four years at the time. The report indicated that on 13 December 2013, the Applicant and Victim 1 were having an argument about money when the Applicant called Victim 1 a “slut” and a “bitch” and slapped her across the cheek with the back of his hand. He then picked up a television and smashed it on the ground.
At the hearing the Applicant denied slapping Victim 1 or breaking the television.
The Respondent took the Applicant to the police records regarding a charge of resist officer in execution of duty for which he was convicted on 24 March 2015.
The police report indicates that on 20 September 2014 the Applicant was involved in a confrontation with police where he was acting aggressively and demanded that the police shoot him. The Applicant resisted arrest and thrashed his arms about. The report states that the Applicant kicked a police officer in the head.
The Applicant said that on the evening in question, police had told him not to move but that he had tried to get away from them to light a cigarette. The Applicant said that the police said that they would shoot him if he moved so he told them to shoot him. The police then subdued the Applicant on the ground. The Applicant said he did not resist the police officers.
The Respondent took the Applicant to the police records regarding the Applicant’s convictions on 20 April 2015 for common assault, contravene prohibition/restriction in AVO, stalk/intimidate intend fear physical etc harm and destroy or damage property.
The police report indicates that the Applicant and Victim 1 had been a domestic relationship for approximately four years. On 21 October 2014, the Applicant hit Victim 1 across the legs and body with a broom. Victim 1 felt immediate pain and was yelling at the Applicant to stop. The Applicant put down the broom and grabbed a dinner plate and hit Victim 1 with the dinner plate. The Applicant has then taken the broom again and hit Victim 1 on her legs with the broom. The police report indicates that Victim 1 said “stop what you are doing, I’m not a girl off the streets, I’m your girlfriend or wife whatever you want to call me.” The Applicant then slapped Victim 1 across the face with an open hand. The Applicant ordered Victim 1 to accompany him and when she refused the Applicant hit her across the face with his hand. The Applicant then produced a 20 cm steak knife which he put to Victim 1’s throat indicating that he would cut her neck if she did not accompany him. The Applicant then left the unit and Victim 1 closed the glass door of the unit and locked it. The Applicant returned a few minutes later and demanded that Victim 1 open the door. When she refused the Applicant smashed in the glass door.
The sentencing magistrate’s remarks in relation to this offending include the following:
“These are matters that involve an unacceptable degree of violence committed against person who was in and out of a relationship with it as I understand it. He has backed away from his participation in the assaults. He has told the probation and parole officer today that in fact the bruising that was evident upon the alleged victim was not as a result of what he had done to her, but what her brother had done to her when he found out that she was in a relationship with [Applicant’s name redacted]. I am not sure where the truth lies in that regard and I can only proceed on the pleas of guilty that I have via Mr Robinson in relation to this very serious set of facts.
So far as those facts are concerned it is important that [Applicant’s name redacted] understands what the Court has before it by way of what it sees as abhorrent and unacceptable violence within a domestic relationship. When the victim told [Applicant’s name redacted] that she did not wish to spend the day with him he retrieved a broom from the corner of the unit and proceeded to hit her numerous times against her legs and body. She felt immediate pain to those areas and was yelling for the accused to stop. He put down the broom and grabbed a dinner plate and approached her with that. She put her hands up to protect herself, at which time the accused hit her on the arm causing her immediate pain. She had then tried to cover herself with a blanket to protect herself. He grabbed the broom again and continued to repeatedly hit her around the legs, yelling at her. She was screaming for him to stop. He continued to assault her causing the bruises to which I have already referred and of course which he denies. She got off the bed eventually. She walked some distance across the floor. He walked up to her, slapped her across the face with an open hand. She ran from the unit for help. He caught up with her, he again slapped her across the face hard with his hand. She suffered a scratch and mild bruising. He followed her into the bathroom where she sat on the toilet seat. He produced a 20 cm steak knife. He walked towards her and grabbed her hair with his right hand and pulled her head backwards and put the knife against a throat saying “if you don’t come with me I’m going to cut your neck”. She was shocked obviously and was stunned by what had occurred. He threw the knife into the shower and left the unit.
Some days later the lady received several phone calls from the defendant saying that he wanted to or that he was going to turn Muslim so that they could be together. He said it was all God’s work. He said “don’t let me go crazy more than I’ve already gone, you know I’m crazy, I’ll kill and burn everyone”. So clearly these threats had a significant impact upon the victim and indeed upon his apprehension [Applicant’s name redacted] has been in custody ever since.
He is a person that suffers from a mental condition. He has a psychosis of one form or another. He is also a person who indulges in illicit substances, particularly ice and of course these are the issues that have in one form or another continued to contribute to his unenviable and burgeoning criminal history.
Somewhere along the line [Applicant’s name redacted] must understand that despite his mental illness and the issues that that presents him he is not entitled to beat women. He is not entitled to hit them with broomsticks. He is not entitled to slap them across the face when he does not get his own way. He is not entitled to inflict bruises upon them and to frighten them into submission. This is repeat violent behaviour in contravention of court orders and penalties must be imposed that reflect the community’s attitude toward such offending.”
Although the Applicant had previously given evidence that he had never been violent towards Victim 1 or ever threatened her, the Applicant indicated that he did not remember anything about this incident as he was on a “new medicine” indicating that the medicine affected his ability to remember the incident.
The Respondent took the Applicant to the police records regarding the Applicant’s convictions on 20 April 2015 for contravene prohibition/restriction in AVO and stalk/intimidate intend fear physical etc harm.
The police report indicates that the Applicant and Victim 1 had been in a domestic relationship for four and half years. On 15 November 2014, the Applicant left a voice message on Victim 1’s mobile telephone which stated:
“…If I turn Muslim what’s going to happen? If your mum accepts me as your husband call me back. I’m in hospital and waiting to see what’s going to happen. I don’t care if you’re Muslim or Christian; it’s all God’s work. I’ve got a dirty mind just wait till the end and see what happens. Don’t let me go crazy more than I’ve gone crazy, okay. You know I’m crazy I’ll kill/burn everyone. Just listen to me and listen to my words, you’re Muslim and I don’t care, it doesn’t worry me as long as you’re next to me. Call me back later and let me know what will happen. [Applicant’s name redacted]. Just leave it all for God’s work.”
The police report indicates the Victim 1 felt threatened and intimidated by these words and felt scared for the safety of her children and her family.
Again, the Applicant said that he could not remember what had happened on this occasion because he was under the influence of his medicine.
The Respondent took the Applicant to the police records regarding the Applicant’s convictions on 10 June 2015 for armed with intent to commit indictable offence; destroy/damage property; stalk/intimidate intend fear physical harm and possess or use a prohibited weapon without permit.
The police report indicates that the Applicant had attended the house of a male victim. The victim accused the Applicant of slashing the tires of his vehicle. The Applicant has then retrieved a sword from his vehicle, pointed it towards the victim and said “Come, come”. The Applicant was walking towards the victim with the sword when a neighbour of the victim attempted to restrain the Applicant. The police report indicates that the Applicant said to the victim “I’m going to kill you and show you”. The victim asked the Applicant to wait for police and the accused replied “I don’t carer about police, call anybody you like.” The Applicant then returned his motor vehicle and has attempted to leave but was unable to as the victim’s car was behind his. The Applicant released the handbrake of the victim’s vehicle and pushed it. The victim’s vehicle rolled forward and crashed into a fence causing damage to both the fence and the victim’s vehicle. The Applicant then returned to his car and removed an axe from the rear seat. The Applicant took the axe and walked towards the victim. While walking towards the victim the Applicant said “if you follow me, I will show you, I will kill you.” The Applicant then departed. Before driving away, the Applicant threatened that he would return.
Again, the Applicant said that he could not remember what had happened on that occasion because he was under the influence of his medicine.
The Respondent took the Applicant to the police records regarding the Applicant’s convictions on 10 June 2015 for larceny and common assault.
The police report indicates that the Applicant became involved in an intimate relationship with a transgender female who was the victim of this incident. The victim found out that the Applicant had a girlfriend and decided to call off the relationship. The police report indicates that on 31 May 2014, the Applicant attended the victim’s house and demanded to know what the victim had said to his girlfriend and why she had been talking to her. The victim asked the Applicant to leave her home on a number of occasions and the Applicant ignored these requests. The Applicant and the victim began arguing and the Applicant slapped the victim across the face using the back of his hand and then stood over her. The Applicant then took money from the victim’s purse before returning to the victim, spitting on her and calling her a whore before leaving the apartment. The Applicant called the victim on a number of occasions after the incident, insulted her and told her “I am going to break your neck and I will smash you when I see you.”
The Applicant denied that the above incident had occurred. The Applicant said that Victim 1 had a friend who was a transgender female and that Victim 1 and the transgender female had concocted a story to get the Applicant into trouble.
The Respondent’s solicitor took the Applicant to the personal circumstances form that the Applicant signed on 22 September 2016. In that form there was a question as to whether the Applicant believed that there were any factors that helped explain his offences. The Applicant had indicated that his mental illness and substance abuse were factors. In addition the Applicant stated “specific gangs that have been trying to force me to follow their beliefs. I have spoken to police about this but do not have the police reports.”
The Applicant indicated that he was referring to Victim 1’s brothers. The Respondent’s solicitor asked the Applicant what Victim 1’s brothers had done to cause him to offend. He said that they would come to the house that he shared with Victim 1, gave him drugs and spoke to him about going to Afghanistan to join the Islamic State.
The Tribunal asked the Applicant why Victim 1’s brothers, who according to him knew that he was Christian, would think that the Applicant would be interested in going to Afghanistan to fight for the Islamic State.
The Applicant said that Victim 1 had told her brothers that the Applicant was a Muslim. He said that he told them that he was a Christian and that they then proceeded to drug him to convince him to convert to Islam and to travel overseas to fight for the Islamic State.
The Tribunal asked the Applicant whether he had ever been harmed by Victim 1’s brothers and he said that he had been harmed by the victim’s brothers in that they conspired with Victim 1 and others to get the Applicant in trouble with the police. When asked again whether the Applicant had ever been physically harmed by Victim 1’s brothers, the Applicant said that he did not know because he had been drugged for about three days and he was unconscious and could not remember anything that happened to him during that period.
The Applicant had previously given evidence at the hearing the Victim 1’s brothers had drugged and raped him.
This claim arose for the first time at the hearing response to questions from the Respondent’s solicitor about a report from New South Wales Health. That report indicated that the Applicant was admitted to Wyong Hospital Mental Health Unit on 21 October 2014. The report relevantly provided:
“…When he was assessed at Wyong mental health unit, he was psychotic with persecutory themes where he suspected that his partner’s family was out to get him. He reported hearing auditory hallucinations and made repeated threats to harm his brother-in-law in the context of beliefs that his brother-in-law in the context of beliefs that his brother-in-law had drugged him and sexually assaulted him for three days. He also made repeated suicidal threats and reported that he attempted suicide several times in the past. He denied any recent use of illicit substances. His management at Wyong Hospital was difficult due to aggression. He required multiple depot medications, including Accuphase, and the presence of security and police assistance for containment. He made threats to other patients and staff. It was apparent that he was highly volatile and had low frustration tolerance. Due to these reasons, he was transferred to MHICU.
At MHICU he was psychotic and aggressive. He had delusional beliefs that he had been raped by a number of people and was made gay; and that he had been on the run due to his life being at risk from numerous people. These beliefs were impossible to be reasoned with. He was aroused, volatile, aggressive and suspicious. …”
The Applicant submitted three statutory declarations in support of his application for a Protection visa. The first was statement of Jerry and sworn on 27 January 2008. That statutory declaration appears to have been made in support of a Protection visa application by Tom, Jerry’s partner. Despite the statement being sworn in January 2008, the statement indicated that in June 2008 Jerry and Tom started to fight a lot as Tom was stressed over an incident that had happened to the Applicant. Jerry claimed that the Applicant’s ex-flatmate, Max, had discovered that the Applicant, his partner Mike and Tom were gay. The statement indicated that Max had contacted the Applicant’s family in Egypt telling them that the Applicant, Jerry, Mike and Tom were gay. Jerry claimed that he and the Applicant had known each other in Egypt and that their families knew each other. Jerry claimed that the Applicant’s family spoke to Jerry’s family and told them that Jerry was gay. The rest of the statement was about Jerry and Tom.
At the hearing the Applicant was asked whether he knew a “Jerry” and he said that he did not. When he was reminded that Jerry had written a statement which was submitted with his Protection visa application the Applicant indicated that he did remember a Jerry who was a friend of Tom and Mike. However, the Applicant said that he was unaware that a statement made by Jerry had been included with his Protection visa application and he said that he had not seen the statement until the proceedings before the Tribunal. The Applicant indicated that he did not know Jerry and that he was a friend of Mike’s. The Applicant indicated that he knew that Jerry had applied for a Protection visa on the basis that he was gay as had Mike and Tom. The Applicant indicated that he had not known Jerry in Egypt and had only met him in Australia through Mike.
It was put to the Applicant that his claims that he did not know that Jerry’s statement had been included in his Protection visa application and that he had not read it until the proceedings before the Tribunal were difficult to reconcile with the Applicant’s reference in his Protection visa application to a statement by Jerry. The Applicant said that he was not sure whether Jerry would submit a statement and that he could not remember whether his migration agent told him that Jerry had submitted a statement.
The second statutory declaration was made by “Richard” (a pseudonym) on 8 July 2008. Richard was a Brazilian man who had also applied for a Protection visa. The statement indicates that Richard wrote the statement in support of the Protection visa applications of the Applicant, Mike and Tom. The statement indicates that Jerry had already been granted a Protection visa.
Richard said that he met the Applicant and Mike in February 2008. He said that the Applicant had known Jerry from Egypt. He said that the Applicant and Mike had told him that they had been permanent partners since they had arrived in Australia and that they were looking for a place to live together. Richard told the Applicant and Mike that he had a flatmate who was moving out and that they could move in with Richard once his flatmate moved out. Richard said that about six weeks later Mike moved in and the Applicant was to follow later.
Even if the Tribunal were to accept that the Applicant had an intimate relationship with a trans-gender woman, it not clear why the Applicant’s solicitor asserts that this is evidence that he is homosexual. While there is no evidence before the Tribunal on this matter, the common understanding of a transgender woman is a person that was born biologically male but has sought, or is seeking, to appear more female than male in a physical sense to match their identified gender as female. While the Applicant may argue that because a transgender woman was born a man in the physical sense and therefore the Applicant is homosexual for having an intimate relationship with her, that is by no means a certainty. It is equally, if not more likely, that the Applicant was attracted to the transgender woman because of her feminine traits and that she had masked her masculine traits. Whatever the case, without more evidence, the Tribunal is not willing to find that if the Applicant had an intimate relationship with a transgender woman, this supports the argument that he is gay.
Against the paucity of evidence that the Applicant is gay, there is a great deal of evidence to indicate that the Applicant was in a heterosexual relationship with Victim 1 between 2011 and 2014.
The Tribunal has discussed the police reports in relation to the charges for which the Applicant was found guilty. In all of the police reports relating to offending against Victim 1, there is an indication that the Applicant was in a romantic or intimate relationship with her. The Tribunal notes that while the matters for which the Applicant was found guilty were described on 12 pages of police reports, the entirety of the police reports regarding the Applicant were contained on 38 pages. Much of what was described in the remaining 26 pages of the report related to matters for which the Applicant was not charged, for which charges were withdrawn, for which charges were dismissed or for which annulments were granted. The Tribunal has not had regard to any of the police reports which related to behaviour which did not result in findings of guilt for the purposes of considering the protection of the Australian community. However, throughout the material in the police reports there are numerous reports which indicate that the Applicant was in a domestic, de facto relationship with Victim 1. They were described as boyfriend and girlfriend, partners, that they had been in a domestic relationship and that they been in a de facto relationship. There is nothing in the police reports which indicate that the applicant is homosexual or that he was simply Victim 1’s carer.
Similarly, the magistrate who sentenced the Applicant on 20 April 2015 indicated that the couple had been in a “relationship”, that the Applicant had told a parole officer that Victim 1’s brother beat her after he discovered that she was in a “relationship” with the Applicant and that the Applicant and Victim 1 were in a “domestic relationship”. There is no mention in either the police reports or the magistrate’s remarks of the Applicant being merely the carer for Victim 1 rather than her de facto partner.
Additionally, the presentence report for the Applicant dated 20 April 2015 indicates that the Applicant told the community corrections officer that he had “been in a relationship with the victim for four and a half years prior to the offence”. The Applicant also indicated that he had been receiving Newstart allowance, not carer allowance, in the two years prior to April 2015. The report indicates that the Applicant told the community corrections officer that Victim 1 had been beaten by her brother “after he found out she was in a relationship with the offender. [Applicant’s name redacted] explained that the victim and her family are Muslim and they did not approve of him as her partner as he is a Christian.” The admission by the Applicant that Victim 1’s family did not accept him because he was a Christian is consistent with the police report in relation to the Applicant’s conviction for stalk/intimidate intend fear physical harm on 20 April 2015. That conviction involved the Applicant leaving threatening messages on victim 1’s telephone. One such message contained the question as to whether victim 1’s mother would accept the Applicant as Victim 1’s husband if he converted to Islam.
Further, the second presentence report dated 9 June 2015 also indicates that the Applicant disclosed to the community corrections officer that he had been in a de facto relationship with Victim 1 for a number of years but that the relationship had ended in 2014. The second presentence report indicated that the Applicant had worked in various positions and had previously received workers compensation and Newstart allowance but importantly mentions nothing about him having received a carer allowance.
The Tribunal considers that there is overwhelming evidence that the Applicant was in a de facto relationship with Victim 1 between at least 2011 to 2014. There is no independent evidence that the Applicant was Victim 1’s carer or that he received a carer benefit while living with the victim.
The Tribunal finds that the Applicant was in a de facto relationship with Victim 1 from at least 2011 to 2014.
The Tribunal notes that just because the Tribunal has found that the Applicant was in a de facto relationship with Victim 1, a woman, between 2011 and 2014, that does not necessarily preclude that the Applicant is homosexual or bisexual. The existence of a de facto heterosexual relationship does not preclude the possibility that the Applicant is same-sex attracted. However, the Tribunal does consider it is evidence that the Applicant is heterosexual rather than homosexual, especially when considered with the rest of the evidence before the Tribunal which raises serious doubts as to whether the Applicant is or was homosexual.
In his Protection visa application, the Applicant indicated that his family ceased to speak with him once they discovered that he was homosexual in 2008. In his statutory declaration of 6 August 2019, the Applicant indicated that most members of his family no longer spoke with him. The Applicant asserted that all of his family members want to kill him. In the Respondent’s written contentions dated 22 August 2019, the Respondent pointed out that the second parole report indicated that, as at June 2015, the Applicant had weekly telephone contact with his mother and monthly contact with his siblings. On 26 August 2019, the Applicant filed an unsworn statutory declaration stating that he had contact with his mother and sister in 2015 to discuss his father’s estate and that these calls were about financial and property matters. At the hearing, when first asked what contact the Applicant had with his mother and brother and sister, he said from “2008 up until now, no contact”.
When Respondent asked whether there had been no contact at all during that period, the Applicant said that he spoke with his family a few times while he was in hospital to discuss inheritance. He then said that he spoke to them many times to discuss inheritance and money. The Applicant then said that he was speaking with his family in 2014 when he was in hospital and then when he was in gaol in 2015. The Applicant said that he was also in contact with his sister on social media. He then said he was last in contact with his sister at the beginning of August 2019 and said that he was in contact with his brother about nine or 10 months ago. The Applicant maintained that he was only speaking with his family members to try to get them to send him money. He said that he spoke to his family quite often when he was in hospital but that he did not speak to his family that often while he was in gaol because calls cost money and he didn’t have money.
The Tribunal considers the Applicant’s continued contact with his family members up until recently this year strongly indicates that they did not intend to harm him and that he has no fear of them.
The Tribunal considers that the evidence above strongly suggests that the Applicant is not homosexual. The Tribunal finds that the Applicant is not, and has never been homosexual or same-sex attracted, that he has never had any sexual or intimate relationship with a man, that no one ever told his family or anyone else in Egypt that he was homosexual or sent any material or information to Egypt indicating that the Applicant was homosexual.
The Tribunal does not accept that the Applicant would suffer harm if he were return to Egypt as a result of his claimed homosexuality or perceived homosexuality.
In terms of fearing harm for the perception of the Applicant being homosexual, the Tribunal does not consider that there is any basis upon which anyone in Egypt would perceive the Applicant to be homosexual. The Tribunal has found that the Applicant is not and has never been homosexual and that no information has been relayed to Egypt, or is likely to be related to Egypt, to suggest that the Applicant is homosexual. The Tribunal notes that the Applicant has been de-identified in this and all of his other proceedings.
Christianity
In his Protection visa application, the Applicant did not assert that he feared persecution or harm in Egypt because he was a Coptic Christian. That claim was raised for the first time at a Detention Client Interview on 15 August 2015. In answer to the question “do you have any reasons why you cannot return to your country of nationality?” the Applicant stated:
“fighting in Egypt between Christians and Muslims;
Someone (Max) in Egypt pay another person to kill him, so he fears his life if he goes back to Egypt.”
In written questions put to the Applicant during the ITOA process, the Department raised that the Applicant had made new claims in 2015 about fighting between Christians and Muslims in Egypt that had not been raised in his Protection visa application. Through his migration agent, the Applicant replied that some Christians in Egypt suffered persecution and that all Christian Egyptian’s feared persecution. He said that he had not raised this claim in his Protection visa application because he did not previously fear harm for religious reasons but that religious tensions in Egypt had increased significantly since his Protection visa application.
The only independent country information report which was before the Tribunal was the “DFAT Country Information Report: Egypt” dated 17 June 2019. The report that indicates that Egypt’s population is estimated at 94.8 million. The DFAT report indicates that between 8% and 10% of the population, some 7.5 to 9.5 million Egyptians, are Coptic Christians making Coptic Christians the second largest religious group in Egypt after Sunni Muslims.
In the Applicant’s written contentions, the Applicant provided the following extracts from the DFAT report:
(a)"There was a significant growth in communal violence, which impacted particularly on the Christian community" at [2.38];
(b)"Over 150 Christian families fled the northern Sinai town of al-Arish in early 2017 after militants killed seven Coptic Christians in a series of separate attacks" at [2.39];
(c)"Terrorist Attacks on Christians - In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark's Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks" at [3.21];
(d)"All those belonging to recognised Christian denominations are identified as Christian on their national ID cards" at [3.31]; and
(e)"DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature,..." at [3.36].
The section on “Christians” in the DFAT report provides:
“3.31 Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and in major cities such as Cairo and Alexandria. Suburbs in Cairo and other cities and some villages are sometimes regarded or described as 'Christian areas', but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.
3.32 Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely than Muslim women to leave their hair uncovered. Christian women living in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab. Christians tend to have identifiable names. Some Christians tattoo small crosses on the inside of their wrists or between their thumb and forefinger as a mark of their identity, often following visits to monasteries or holy sites. Not all Christians have these tattoos and it is not a mandatory religious practice.
3.33 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. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be under-represented in senior civil servant roles, and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.
3.34 Most Christians viewed the post-2011 Revolution ascendency of the Muslim Brotherhood with considerable apprehension. They regarded the Morsi government's removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi's public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark's Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians (see Security Situation). Local sources report that Christians generally remain strong supporters of Sisi, although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt.
3.35 Minority Rights Group International estimates that there are between 1000 and 1500 Jehovah's Witnesses living in Egypt. Although the denomination is not officially recognised, authorities permit its members to meet privately in gatherings of fewer than 30 people). Jehovah's Witnesses are banned from importing religious literature such as Watchtower publications, which are a key part of religious instruction and practice for Witnesses.
3.36 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 (see Judiciary). 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.”
The DFAT report also records that high profile incidents in which people are killed or churches attacked as a result of communal violence are not a frequent occurrence.
The DFAT report indicates that the last large-scale anti-Christian violence ended with a declaration of a nationwide state of emergency and a curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters. In December 2014, 40 perpetrators responsible for attacks on churches in Upper Egypt received prison terms ranging from 1 to 15 years. The DFAT report assesses that Egyptian authorities are generally committed to preventing communal violence.
The Tribunal considers that it appears that the main risk to Christians in Egypt is from terrorist attacks where some 108 people have been killed since 2016. The DFAT report also indicates most incidents of communal violence have occurred in Upper Egypt and in particular in Minya province and that communal violence is likely to occur occasionally, especially in Upper Egypt.
At the hearing the Applicant indicated that he had never been harmed because of his religion in the past in Egypt. The Applicant did not make claims of fearing harm in his Protection visa application. The Applicant was born and raised in Cairo, in Lower Egypt, which is less prone to communal violence. In addition, the Egyptian authorities have sought to quell communal violence and fight terrorism in Egypt. Further, it appears that the Applicant’s chances of being harmed for being a Christian are also lessened by the fact that he has indicated that he is a non-practising Christian which would be likely to decrease his chances of participating in Christian activities including attending church or other Christian gatherings which may be targeted by terrorists or communal violence.
The Tribunal considers that there is a possibility the Applicant will be seriously or significantly harmed or killed in Egypt because of his religion. However, the Tribunal considers that this chance is remote and does not represent a real chance or a real risk.
The Tribunal notes that the DFAT report indicates that Egypt accepts involuntary removals. That fact, and the operation of section 198 and 197C of the Act, will result in the removal of the Applicant from Australia if the Applicant’s visa remains cancelled.
Conclusion: non-refoulement obligations
The Tribunal has found that there is no real chance that the Applicant would suffer serious harm owing to his claimed membership of the particular social group of homosexuals in Egypt, if returned to Egypt. The Tribunal is not satisfied that the Applicant is homosexual.
Similarly, the Tribunal has found that there is no real chance that the Applicant would suffer serious harm if returned to Egypt because of the perception that he is a homosexual. The Tribunal does not consider that there is any basis upon which anyone in Egypt would perceive the Applicant to be homosexual. The Tribunal has found that the Applicant is not and has never been homosexual and that no information has been relayed to Egypt, or is likely to be related to Egypt, to suggest that the Applicant is homosexual.
The Tribunal has found that there is no real chance that the Applicant would suffer serious harm if returned to Egypt owing to his Christian faith. While the Tribunal considers that there is a possibility that the Applicant may be seriously harmed or killed because of his Christian faith return to Egypt, the Tribunal considers that this chance is remote and does not represent a real chance.
The Tribunal has also found that there is no real risk that the Applicant will suffer significant harm if returned to Egypt because of his sexuality or perceived, his religion or for any other reason.
Thus, the Tribunal finds that Australia does not owe international non-refoulement obligations in respect of the Applicant, no such obligations are engaged in respect of the Applicant and the Tribunal’s refusal to revoke the cancellation of the Applicant’s visa will not result in a breach of Australia’s international non-refoulement obligations under the Refugees Convention, the CAT or the ICCPR.
The Tribunal gives this consideration neutral weight in this case.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2006 as a 23 year old. He has lived in Australia ever since. The Applicant began offending in 2011 some five years after he arrived. He has committed 17 offences from 2011 until 2014. Apart from some limited employment, there is very little evidence of the Applicant contributing positively to the Australian community.
The Applicant has very little other connections to individuals in the Austrian community. Not one person appeared before the Tribunal in support of the Applicant and the Applicant did not indicate that he had any friends in Australia.
Overall, the Tribunal finds that the Applicant does not have particularly strong ties to Australia. In reaching this finding the Tribunal has considered that the Applicant has lived in Australia for a significant amount of time. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places low weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a man of 36 years of age who has suffered from a psychotic episode in the past and other psychological conditions. It is not clear whether the Applicant still suffers significant mental health issues. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in the Egypt. As a citizen of the Egypt, the Applicant will be entitled to any social, medical and economic support available to Egyptian citizens in the Egypt, however limited.
The Applicant gave evidence that his mother and two siblings live in Egypt and he has been in contact with his two siblings recently. While the Applicant has asserted that he will not have any family support and that his family want to kill him, the Tribunal has rejected those claims. The Tribunal considers that the Applicant will have the support of his mother and two siblings on his return to Egypt.
The Applicant provided evidence that he completed high school, two years of military service and completed a trade qualification in automotive mechanics in Egypt. He indicated that he worked as an automotive mechanic in Egypt prior to his arrival in Australia.
The Applicant has also worked from time to time in Australia. He has worked at a car wash, at a petrol station, as an automotive mechanic, as a removalist and in the construction industry.
The Applicant has provided evidence that he suffers psychosis and was admitted to hospital in 2014 and suffered a psychotic episode where he had auditory hallucinations. There is evidence that the Applicant has had auditory hallucinations from time to time. The DFAT report indicates that the availability of mental health care in Egypt is limited and that most mental health resources are allocated to a small number of centralised hospitals rather than being integrated into primary healthcare.
The DFAT report also indicates that drug addiction is a serious and growing problem in Egypt with approximately 10% of the population addicted to drugs; twice the global rate. The DFAT report indicates that the Egyptian government is increasing efforts to rehabilitate addicts including through the expanding the number of drug treatment centres and hotlines to make drug addicts aware of treatment and rehabilitation services. The DFAT report indicates that 104,000 addicts benefited from these services in 2017, a 20% increase from the previous year.
The Tribunal finds that the Applicant will face difficulty in re-establishing himself in Egypt. He has lived in Australia for some 13 years and will be likely to be very upset at having to return to Egypt. The Tribunal considers that the Applicant may find it difficult to obtain adequate medical treatment for his mental illness in Egypt. If the Applicant is unable to obtain adequate treatment, this may have a severe negative impact on his health. The Tribunal also considers that there is a real chance that the Applicant will return to illicit drug use.
The Tribunal considers that the Applicant’s qualifications and work experience will hold him in good stead of finding employment in Egypt, especially if he can stay clear of drugs.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Hardship and harm to the Applicant
The Tribunal has also considered the effect of non-revocation on the Applicant. The Tribunal considers that the non-revocation of the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. In all likelihood, the Applicant would never be able to return to Australia, where he has lived for 13 years. The Tribunal has also considered the hardship to the Applicant that may result in the likely event that he does not receive adequate mental health treatment in Egypt and if you were to return to abusing drugs.
The Tribunal has also considered that there is a possibility that the Applicant will be harmed if he is returned to Egypt, however the Tribunal considers that this possibility is remote.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that the Applicant’s offending was very serious, that there would be serious harm to members of the Australian community if they were repeated and that there is a moderate to high risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke cancellation of the Applicant’s visa.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations weighs neutrally in this case.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed low weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 293 (two hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
...........................[SGD]............................................
Associate
Dated: 18 September 2019
Date of hearing:
4 and 5 September 2019
Solicitor for the Applicant:
Ms Alison Battisson
Human Rights for All
Solicitor for the Respondent:
Mr Jonathon Hutton
Australian Government Solicitor
DRAFT EXHIBIT REGISTER
File No 2019/3897................................................................................................................
Between NLJV...................................................................................................... (Applicant)
And Minister for Home Affairs................................................................... (Respondent)
Heard on
At Sydney.....................................................................................................................
Before Member T Eteuati....................................................................................................
Exhibit Number Description of Evidence
DatedA1 Protection (Class XA) Visa Decision Record dated 11 Jan 10 A2 DFAT Country Information Report: Egypt dated 17 Jun 19 A3 Application for Protection (Class XA) visa (Form 866C) dated 18 Feb 09 A4 Statutory declaration of “Jerry” (a pseudonym) dated 27 Jan 08 A5 Statutory declaration of “Richard” (a pseudonym) with two attached photos dated 8 Jul 08 A6 Statutory declaration of “Steve” (a pseudonym) dated 20 Mar 09 A7 Departmental Record: Event Additional Information Detail, Terry Cantwell dated 24 Mar 09 A8 Email from Terry Cantwell to Therese Nicolas, VT Migration dated 18 Mar 09 A9 Statutory declaration of the Applicant, undated A10 Letter from Therese Nicolas, VT Migration dated 2 Aug 16 A11 Letter of “Joe” (a pseudonym) dated 8 Aug 19 A12 Statutory declaration of the Applicant dated 23 Jul 19 A13 Certificate of Attendance, Dads WA dated 26 Mar 19 A14 Certificate of Attendance, Dads WA dated 28 May 19 A15 Hansard extract dated 13 Sep 17 A16 Statutory declaration of the Applicant dated 6 Aug 19 A17 Evidence in reply dated 26 Aug 19 A18 Translated and copy of original Death Certificate of Applicant’s father dated 22 Aug 19 A19 Statutory declaration of the Applicant, undated R1 Summonsed material: NSW Police Force received 29 Jul 19 and 5 Aug 19 R2 Summonsed material: NSW Department of Justice R3 Immigration detention client incident report from April 2017 – August 2019
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