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Tribunal: Member C Smolicz

The AAT was asked to review a decision made by the Department of Home Affairs (the Department) to refuse to grant a protection visa. The applicant feared imprisonment on return to Egypt due to his actions of seeking asylum in Australia and his political views. The issue for the AAT was whether the applicant met the refugee criterion or came within Australia’s complementary protection obligations.

Australia has an obligation under the Migration Act 1958 to protect individuals who satisfy one of these two categories.[1] The ‘refugee criterion’ broadly requires applicants to have a ‘well-founded fear of persecution’ should they return to the country of their nationality.[2] The ‘complementary protection’ grounds broadly require that there is ‘a real risk of significant harm’ to the applicant should an applicant be removed from Australia and sent to a receiving country.[3]

The applicant argued that his support of the Muslim Brotherhood, his political opposition to the Sisi government and the prospect of returning to Egypt as a failed asylum seeker posed a risk of harm to him. The applicant argued that because he feared harm from Egyptian authorities, nowhere was safe for him if he returned.

The AAT found there is no real chance the applicant would face serious harm if he returned to Egypt because he was an ordinary supporter of the Muslim Brotherhood, was not a member of a political party and was not a religious extremist. The AAT also noted that Egyptian officials generally pay little regard to failed asylum seekers.

When the applicant arrived in Australia in 2005 to undertake further study, he was not escaping persecution. Following the expiry of his student visas, he married an Australian citizen and lodged an application for a partner visa which was refused on the grounds that the relationship was not genuine. The AAT found the applicant applied for a protection visa because he wanted to remain in Australia with his wife. The AAT concluded the applicant did not meet the criteria for a Protection visa and affirmed the Department’s decision.

Read the full decision on AustLII.


[1] Section 36(2) of the Migration Act 1958

[2] Section 36(2)(a) and Section 5H  of the Migration Act 1958

[3] Section 36(2)(aa) and Section 36(2A) of the Migration Act 1958