1416052 (Refugee)

[2015] AATA 3404

1416052 (Refugee) [2015] AATA 3404 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416052

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Antoinette Younes

DATE:1 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first-named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 01 September 2015 at 5:13pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Egypt, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] September 2014.

3. The applicants appeared before the Tribunal on 21 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   THE LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS & EVIDENCE

9. In the application for a protection visa, the first-named applicant (applicant) claimed that:

   a.He has been active in the church since he was a teenager and he became an evangelist. He has spread the word of Christ through books he had written, radio programs, direct public speaking and teaching in theology school. He also provides individual services with many families. He has travelled outside Egypt and continued his mission. In 2005, he stopped paid employment and has since devoted his life to the mission.

   b.For most of his life, he suffered at the hands of the authorities and the Muslim community in Egypt. The discrimination significantly increased in the last few years. During the brief period that he was in Egypt after the downfall of Morsi, he experienced a sharp increase in persecution towards him.

   c.He has been monitored, detained and interrogated by the authorities “on countless occasions”.  He became well known in Egypt with the authorities and certain groups. There were limits placed on what he could do. The Egyptian authorities harassed him frequently and accused him of trying to convert Muslims to Christianity. They tried to dictate his programs.

   d.The cumulative impact of the troubles he had with the authorities and the community over the years amounts to persecution. As a true servant of Christ, he expects and tolerates a certain degree of persecution. However, given his age, health, and decreasing ability to protect his wife, he has a well-founded fear of returning to Egypt. This is more significant now because the attitude of many Muslims towards Christians which has become worse.

   e.He has been monitored and interrogated by the Egyptian authorities “many times”.  Salafists tried to disrupt a Church meeting by insulting them and threatening to harm them. After he and his wife left the Church, Salafists ran after them and began to insult them and hit his wife because her hair was not covered. Outside his home, he had a metal rod thrown at him. He passed out and was subsequently taken to hospital. In the building where they lived, there are other Christians and they all have been targeted and terrorised. One of the residents was injured. He has had to significantly modify the way he conducts his mission which has become discrete.

   f.If he were to return to Egypt, he fears that he would continue to be monitored, harassed, and possibly killed by the authorities and extremist Muslims. This would happen to him because he is known to be an active Evangelist.

10. In support of the application, the applicant provided:

    a.A translated document titled To whom it may concern, dated [in] May 2012 from the General Council of [a certain church] referring to the applicant as being an emeritus servant of the Lord.

    b.A translated document titled To whom it may concern, dated [in] May 2013 from [a] Seminary Egypt, noting that the applicant is [an official] of the board and member of the teaching organisation.

    c.A translated document titled To whom it may concern, dated to June 2013, from [a certain church] noting that the applicant performs spiritual services in the Church.

    d.A document titled Information Regarding Temporary entry of other personnel – religion referring to the applicant as an Evangelical Christian and preacher. The author also mentions the applicant’s writing of Christian books and that he is well-known in the Middle East.

11. The applicant was interviewed by the Department [in] June 2014.

12. In support of the application for review, the applicant provided a copy of the delegate’s decision record. On 17 August 2015 the applicant provided:

    a.A letter of support from [a named person of a certain church in Australia in] June 2015 stating that the applicant has been known since December 2003. The letter also referred to the applicant’s current Christian related activities in [various Australian cities].

    b.A letter from [a certain church in] June 2015 referring, amongst other things, to the applicant’s attendance at the Ministry and his involvement in preaching and teaching scripture.

    c.Various independent country reports about the treatment of Christians (mainly Coptic Christians) in Egypt.

    d.Copies of photographs of the applicant and others engaged in media-related and Christian-related activities in Australia.

    e.Christian-related publications of the applicant.

    The applicant’s Christian faith

13. The applicant gave evidence that he grew up in a Christian family and that he belongs to the Evangelist Christian faith. He stated that in Egypt, he was a pastor and he was involved in various Christian related activities including, preaching, raising awareness, providing education and looking after the youth in the church. He stated that he has written books and provided hardcopies in the course of the hearing (front pages copied by the Tribunal). He stated that in Egypt and on various occasions, he appeared in the media on [different] channels. He provided the Tribunal with photographs taken in Australia relating to the applicant’s involvement in Christian and media related activities for the past one and a half years. The Tribunal indicated to the applicant that it would consider the weight that it would place on those documents and whether he had engaged in those activities in Australia to strengthen his protection claims.

14. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant is an Evangelist Christian and that in Egypt and in Australia he has been involved in media and Christian related activities. Specifically and for those reasons, the Tribunal is satisfied that in Egypt the applicant had written books, preached, raised awareness, provided education, and appeared on television. The Tribunal is satisfied that the applicant has a significant profile in terms of Christian related activities.

    Has the applicant suffered any of the claimed harm?

15. The Tribunal asked the applicant about the claims of harm. The applicant stated that he had suffered a lot and he was questioned, especially when his wife was not wearing hijab. The Tribunal asked the applicant to outline specific incidents of harm and the applicant stated that he was summoned “all the time”, his wife was subjected to “many” humiliations and investigations were conducted. The Tribunal asked him when he was summoned and he stated that the last incident occurred in June 2013 prior to coming to Australia. The applicant confirmed that they were granted the Australian visas in March 2013 and that they came to Australia in September 2013. He explained to the Tribunal that they did not travel to Australia soon after the grant of the visas because he was in charge of [a department] at the faculty and needed to be completed by June 2013. He stated that he wanted to wait until the finalisation of the course in order to provide the results for the students. He said they also had a rental apartment in Cairo and had to make arrangements. He said he also had health related issues and had hoped that the situation in Egypt would improve. The Tribunal indicated that it would appear that he has been to Australia on previous occasions and asked him why he had not applied for protection previously. He stated that he did not apply because he expected that the situation in Egypt would improve. He said he is now [age] years of age and is well known for his services and activities in the church in Egypt. He said his wife also suffers from [a medical condition] and has had treatment in Australia.

16. The applicant stated that he has experienced psychological suffering and persecution. He said he and his wife had been subjected to attacks; his wife was hit in July 2013 and a dish fell onto them from the eighth floor of a block also in July 2013. The Tribunal indicated to the applicant that in the course of the interview with the Department, he had indicated that incident occurred between June 2013 and August 2013. That is, he did not specifically say that it occurred in July 2013. He stated that subsequent to the interview, his wife pointed out the date.

17. The Tribunal asked the applicant if he has ever been detained in Egypt and the applicant stated that he was never detained but he had been questioned. The Tribunal referred to the application for a protection visa in which the applicant has claimed that he had been monitored, detained and interrogated. The applicant said that there is a difference between arrest and detention. The Tribunal asked the applicant when he was summoned and detained and the applicant stated that they were monitored and that he was summoned for investigation. He said he was detained at the police station.

18. The Tribunal asked the applicant about when exactly he was detained and the applicant stated that he was summoned once every two months but that was dependent on the security situation in Egypt. He said the last time that he was summoned was [in] June 2013. The Tribunal asked him when he was summoned for the first time and the applicant stated that from 2005 to 2013, he was summoned every two months or twice every two months. The Tribunal asked why in those circumstances, he did not seek protection previously. He stated he did not do so because of his responsibilities in Egypt. He said he had to bear the suffering.

19. The Tribunal asked the applicant when the authorities harassed him and accused him of trying to convert Muslims to Christianity. The applicant did not respond to the question; he stated that throughout his service because they believe that Christ is for all. The Tribunal asked him again and the applicant now stated that he does not recall the specific dates. He stated that his memory has been impacted as a result of the dish falling on his head. The Tribunal indicated that without medical/expert evidence, the Tribunal may not accept that any memory difficulties he is claiming to have are due to the claimed incident.

20. The Tribunal asked the applicant if has ever been contacted by the Egyptian intelligence. The applicant stated that he had and the contact increased after [June] 2013. He stated that his wife had been contacted previously. He said he was contacted in February, March, and May 2013. He said they also called prior to 2013 but he does not recall when. The Tribunal asked him if he was contacted prior 2012 and the applicant stated that he was contacted in 2011. The applicant said that the first time he was contacted was in 1987. The Tribunal pointed out to the applicant that in the course of the interview with the Department, he said that he was first contacted by the intelligence in 2005. The applicant said that he was contacted prior to 2005 but contact became continuous after 2005 because he became famous.

21. As outlined above, the applicant’s evidence in relation to the claimed harm was inconsistent, vague and lacked in significant details. On the basis of the available information, the Tribunal does not accept that a dish fell on the applicant’s head, or that there was any such incident which caused the applicant to suffer memory difficulties. In consideration of the evidence as a whole, the Tribunal is satisfied that the evidentiary problems relate to adverse credibility rather than being due to any memory difficulty. Given the credibility concerns and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant has suffered any of the claimed harm. Specifically and for the stated reasons, the Tribunal does not accept that the applicant was ever monitored, harassed, discriminated against, questioned, detained, or interrogated by the Egyptian authorities, or that he was ever accused of trying to convert Muslims to Christianity, or harmed in any way by the Egyptian authorities. However, the question for the Tribunal is whether there is a real chance of the applicant suffering serious harm if he were to return to Egypt.

22. The applicant has been involved in media Christian-related activities in Australia. On the basis of the available information, and given the Tribunal’s finding that the applicant was involved in Christian related activities in Egypt, the Tribunal is satisfied that the applicant has engaged in those activities in Australia in good faith and consequently, the Tribunal does not disregard those activities. The Tribunal is satisfied that on balance, the applicant’s activities in Egypt in addition to those in Australia gave the applicant a profile of adverse interest to the Egyptian authorities. For those reasons, the Tribunal is satisfied that if the applicant were to return to Egypt, he would continue to be involved in those activities.

    Is there a real chance of serious harm occurring in the reasonably foreseeable future?

23. The Department of Foreign Affairs and Trade’s (DFAT) 28 January 2014 Country Report[1] notes that “broadly speaking, religious minorities in Egypt face a low level of discrimination via the laws and policies of the state (i.e. ‘Official discrimination’) and medium to high levels prejudice within the community (i.e. ‘societal discrimination’). Societal discrimination can be higher in rural, more conservative or poorer areas. Societal discrimination can and, on occasion, leads to violence. However, on a day-to-day level, the overwhelming majority of adherence to minority religions live without fear of violence. In addition, it rained he discrimination laws in Egypt, though their enforcement can be constrained”.[2] 

    [1] Department of Foreign Affairs and Trade 2014, DFAT Country Report, Egypt, 28 January 2014

    [2] Ibid, page 7

24. DFAT reported that there has been an increase in the number of violent incidents involving Christians in recent years. DFAT assessed the increase as being largely due to a long-term trend of increased Islamist sentiment, particularly in poor and rural communities, a deterioration of economic conditions, and a “…..weakening of law and order mechanisms in Egypt….”[3]  DFAT assessed the security situation in Egypt to have been fluid since January 2011 with a notable decrease in law and order leading to an increase in crime, violence and kidnappings. The law enforcement authorities continue to have less presence outside of major urban centres, and in all areas of Upper Egypt[4].

    [3] Ibid, page 11

    [4] Ibid, page 5

25. DFAT assessed that day-to-day life in Egypt is ‘not overly affected by sectarian differences’ and most Egyptians, particularly those in urban areas, have little regard to each other’s religious identity.  However, DFAT notes that ‘underlying sectarian tensions exist and disputes have been known to turn violent’[5]  A number of reputable sources emphasise that the Egyptian authorities’ failure to prosecute perpetrators of sectarian violence has promoted a climate of impunity.[6] In 2013, incidents of sectarian violence demonstrated ongoing problems with the authorities’ response to sectarian violence.[7]

    [5] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, pages.4 and 5.

    [6] Human Rights Watch 2013, World Report 2013: Country Summary Egypt, 31 January, p.5; Human Rights Watch 2013, Egypt: Address recurring sectarian violence, 10 April ; United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 - Countries of particular concern: Egypt, 30 April, p.53, UNHCR Refworld; Department of Foreign Affairs and Trade 2013, DFAT Report No.1490 – Egypt: RRT Information Request: EGY41897, 5 April; ‘Egyptian civilians in crosshairs of Sinai militants’ 2013, IRIN, 11 December

    [7] Amnesty International 2013, How long are we going to live in this injustice? Egypt’s Christians caught between sectarian attacks and state inaction, October, p.3; Amnesty International 2013, Egypt: Government must protect Christians from sectarian violence, 20 August; Human Rights Watch 2013, Mass Attacks on Churches, 22 August../../../../Users/PRATMT/AppData/Local/Microsoft/2013/Web/EGY Egypt - Pope Tawadros rebukes Morsi over cathedral clash.doc; Human Rights Watch 2013, Egypt: Address recurring sectarian violence, 10 April Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March

1. The US Department of State (USDOS) International Religious Freedom Report 2012 for Egypt describes local government officials using legislation to discriminate against Christians who seek official permission to construct or renovate churches.[8] Blasphemy cases against Copts were on the rise in 2013.[9] The government does not recognise conversions of Muslims to other religions and church officials have been arrested for providing false identity documents to converts.[10] During a February 2013 visit to Egypt, the United States Commission on International Religious Freedom (USCIRF) ‘found that the Egyptian government continued to engage in and tolerate systematic, ongoing, and violations of freedom of thought, conscience and religion or belief’ and therefore recommended that Egypt continue to be designated as a Country of Particular Concern.[11]

   [8] US Department of State 2013, International Religious Freedom Report 2012 – Egypt, 20 May, p.10

   [9] Michael, M 2013, ‘With conservative Islamists in power, blasphemy cases surge in Egypt’, Associated Press, 18 May, Christian Science Monitor

   [10] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2

   [11] United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 - Countries of particular concern: Egypt, 30 April, p.47, UNHCR Refworld

2. The Tribunal accepts that the applicants are Christians and that the applicant was involved in Christian-related activities and that if returned to Egypt, he will continue to engage in those activities.  The Tribunal is satisfied that if the applicant were to return to Egypt and continue involvement in those activities, there is a real chance that he would suffer serious harm.

3. On the evidence before, the Tribunal finds that there is a real chance that the applicant and his wife would be harmed by extremist Islamic groups.  The fact that the wife is unwell makes her more vulnerable.  Although the harm would not have an official quality, country information indicates that the Egyptian authorities have failed to protect Christians and prosecute perpetrators of sectarian violence, and consequently promoted a climate of impunity[12]. 

   [12] Human Rights Watch 2013, World Report 2013: Country Summary Egypt, 31 January, p.5  Human Rights Watch 2013, Egypt: Address recurring sectarian violence, 10 April; United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 - Countries of particular concern: Egypt, 30 April, p.53, UNHCR Refworld; Department of Foreign Affairs and Trade 2013, DFAT Report No.1490 – Egypt:

4. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has a well-founded fear of persecution if he returned to Egypt now or in the reasonably foreseeable future and it would not be reasonable for him to relocate to other parts of Egypt.  The Tribunal considers that the persecution which he is at risk of suffering involves serious harm as required by s.91R(1)(b) of the Act, in that it involves significant physical harm, harassment or ill-treatment. 

5. The Tribunal finds that the applicant’s Christian religion and activities, would be the essential and significant reasons for his fear of persecution as required by s.91R(1)(a) of the Act.  On the evidence before it, the Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for Convention reasons.

6. There is no evidence before the Tribunal that the applicant has a legally enforceable right to enter and reside in any other country other than Egypt and therefore the Tribunal finds that he is not excluded from Australia’s protection by s.36(3) of the Act.           

   CONCLUSIONS

7. For the reasons given above the Tribunal is satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations. Therefore the first-named applicant satisfies the criterion set out in s.36(2)(a).

8. The Tribunal is satisfied that the second-named applicant is a member of the same family unit as the first-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first-named applicant’s application. As the first-named applicant satisfies the criterion set out in s.36(2)(a), it follows that the second-named applicant will be entitled to a protection visa provided she meets the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.

   DECISION

9. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first-named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

   Antoinette Younes
   Senior Member