1416862 (Refugee)

[2015] AATA 3770

1416862 (Refugee) [2015] AATA 3770 (20 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416862

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Tania Flood

DATE:20 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 20 November 2015 at 3:52pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Egypt, arrived in Australia [in] June 2013 on a Tourist visa.  He applied for a Protection visa [in] July 2013 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 4 November 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 applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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 AND EVIDENCE

10. The issue in this case is whether the applicant is entitled to a protection visa on refugee grounds (s.36(2)(a)) or, if not, whether he is entitled to protection on complementary protection grounds (s.36(2)(aa)).  For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Summary of the applicant’s claims

11. The applicant claims he fled Egypt in fear for his life due to his reputation of converting Muslim youth back to Christianity and his strong presence in the Coptic Orthodox Church of [Town 1].  He claims he has been the victim of verbal, physical and emotional abuse due to his reputation and involvement in the Coptic community.  His wife and [children] have also been harassed and threatened.

12. The applicant’s representative made further submissions to the Tribunal in documentation received on 30 October 2015.  It was submitted that:

13. Any minor contradictions in details provided by the applicant to the Delegate are attributed to his psychological condition supported by a medical report by [a health service].

14. Country information supports that Copts are unable to avail themselves of adequate state protection in Egypt.  Country information from the UK Home Office and DFAT is referenced in this respect.

15. The legitimacy of previously provided police reports ought not to be dismissed as the differing dates are the result of a translation error which was previously brought to the attention of the Delegate by way of an amended police report.

16. The applicant has medical conditions which complicate his ability to relocate including being diagnosed with Post Traumatic Stress Disorder and Depression.  It is requested that his age, financial situation and ability to seek police protection also be taken into account. 

17. The applicant’s affiliation with the Coptic Church will become evident regardless of his location if he continues the practice of advocating his religion.

18. The applicant was unable to travel to [Country 2] as he was not well and there was an initial diagnosis of [a medical condition].  The applicant has a brother in Australia who could support him physically and financially.

    Nationality

19. The tribunal finds that the applicant is a national of Egypt.  He travelled to Australia as the holder of a passport issued by the Egyptian authorities, a copy of which was provided with the Protection visa application.  The applicant has made no claim to be a national of any other country.  The tribunal finds that the applicant’s claims should be assessed against Egypt.

    Tribunal hearing

20. During the hearing the Tribunal questioned the applicant in relation to his religious background and practices, his claimed multiple instances of harm and his fears of returning to Egypt. The applicant was highly emotional during the hearing and frequently broke down when relating his past experiences.  He requested and was granted several rest breaks to compose himself.  The tribunal did not find the applicant’s behaviour contrived and generally found his evidence to be plausible, persuasive and genuine.  The applicant did not seek to introduce new claims or embellish his existing claims in any significant way and his evidence was generally consistent throughout the hearing and with his written claims. The Tribunal found the applicant to be a credible witness who is genuinely fearful of returning to Egypt.

21. The applicant confirmed he was residing in the town of [Town 1] immediately before his departure to Australia in a property inherited from his family.  In addition to this, he owns another apartment and a small piece of land, also through inheritance.  He described his neighbourhood as being a “good” area in a part rural, part urban area comprising both Muslim and Christian families.  He said he maintained good relations with his Christian neighbours but less so with the Muslim families.

22. The applicant confirmed his remaining family in Egypt includes his wife [and children and his siblings].  The [siblings] are currently residing in Cairo, having moved there as a result of his problems.  His wife and [children] are currently living in a [location] about [distance] from Cairo where they have been for approximately eight months.  Prior to that they were moved from [Town 1] to a church house in Cairo for approximately [number] days.  Prior to that they were moving between [the homes of relatives] in [Town 1].  When asked why his wife and [children] were moved to Cairo and then to the [location] he replied that his wife has [a medical condition] arising from stress and began [having symptoms].  She went to the hospital and when she returned home people began asking whether he had returned as it was commonly known, as a result of their deliberate rumours, that the whole family had left the country.  Thereafter the church assisted them to leave [Town 1].   He confirmed that they have not encountered any difficulties since moving but that they have been in hiding the whole time and his [children] have had no education for [number] years.

23. The applicant confirmed he ran a [business] in [Town 1] which he commenced in [year].  The shop was situated below his residence but he closed it [in] November 2012 and liquidated the stock.  From the proceeds he paid off loans to other merchants, gave some of the money to his wife and used the remainder to come to Australia.    The applicant confirmed he is not working in Australia but does some volunteer work for [an organisation]. 

    Religious background and involvement in converting Muslim youth back to Christianity

24. The applicant claims his family is Christian Coptic Orthodox and they are very close to the church and devoted to its services. The applicant has provided numerous letters of support from the Coptic Orthodox Church in Egypt and Australia confirming his participation in church activities and together with his oral evidence the Tribunal accepts the applicant is a committed Coptic Christian who plays an active role in church activities both in Egypt and Australia.

25. The applicant claims he is well known in his neighbourhood in [Town 1] for helping young Christian youths who were forced by Muslim fanatics to change their religion and that this practice is the cause of the harm he suffered in [Town 1].  When questioned about his motivation for doing this work the applicant explained that it is a personal conviction and an undertaking which is between him and the Lord.  He said the activity was within his religion, referring to a passage in the bible where Jesus speaks about saving the sheep which want to repent.  He said he accepted this role in the church in 2010 after another church person passed away. He said he was involved in several cases, the last being one or two months before the revolution on 25 January 2011.  He said at that time there was too much chaos and not a lot of security and that his priest told him to slow down those activities.  They thought that once things calmed down he would be able to continue his work. 

26. The applicant was asked why it was necessary to do this work when it is permitted for Christians who convert to Islam to convert back to Christianity and seeing as how under Sharia law it is not necessary for Christian women to convert to Islam to marry[1].  The applicant replied that forced conversions do occur, and often involve rape, and that this activity is integral to his religious practice. Later in the interview when he was asked whether he would continue to do this work, knowing the dangers, he said that he is a servant of the church and he will never let women or girls walk away from the Lord against their will.  If he was asked again to do it he said he would. 

    [1] DIBP Issues Paper, Egypt, Treatment of Coptic Christians and State Protection, 3 March 2015

27. The applicant explained that he had relations with a local member of [a government agency] whom he offered financial favours.   He said that when they were alerted to cases of missing girls he would pay the [officer] to find out their whereabouts and assist to get them back. 

28. The applicant was asked for details of specific cases he had been involved in.  He said that he successfully returned a young girl, aged [age], named [Ms A].  He said she was abducted by [a person] from [a certain family]. He said with the assistance of the [officer] they located the girl about [distance] from [Town 1] and returned her to her family.  He said the [family] began threatening him and repeatedly vandalised his car when it was parked in front of the church.

29. The applicant also referred to a case involving [Ms C] who was abducted by [a man] who was [occupation] and from a Salafist family.  Again, he said he enlisted the help of the [officer] who found the girl.  He said that the girl was brought back to the [government agency] and his presence there was witnessed by [the abductor] and two other bearded men who accompanied him.  He said that all the subsequent threats and beatings happened because of his interference in such matters.

30. When asked how he drew a link between his involvement in these cases and the subsequent abuses he claimed the applicant stated that other [merchants of similar products] in his area received threats here and there but he was the only one singled out and beaten.  He said this could only be because his actions were known to the families of the boys who had taken the girls.  He said he has made enquiries through [a priest] in [Town 1] who informed him that these families are still present in the area and are still looking for him.  

31. The Tribunal found the applicant was able to speak with a level of detail and specificity about these cases and found his evidence persuasive. Further, the Tribunal notes the examples given accord with information provided in a letter submitted from [another church leader from Town 1].  Country information also confirms that there are reported cases of women and girls being kidnapped and forced to convert to Islam and marry their abductors[2] and, in a country with a dominant and incontestable Muslim majority where Sharia law forbids Muslim conversion, the Tribunal considers any interference is such matters could result in retribution of the kind described by the applicant from the affected families.   In view of this supporting information and on the strength of the applicant’s oral evidence the Tribunal accepts these events occurred as described.  

    [2] DIBP Issues Paper, Egypt, Treatment of Coptic Christians and State Protection, 3 March 2015

32. Whereas the Delegate found the applicant was only involved in isolated cases, on his oral evidence, and, having regard to the letters of support provided by the Coptic Church in Egypt, the Tribunal accepts the applicant was appointed by his church to do this work and that he undertook the role for at least 12 months from appointment, only ceasing it when the situation became too dangerous.

33. The applicant claimed that the families of the youths he assisted, some of which are Salafists and Muslim Brotherhood, are high profile people with connections and they are looking for him and want to kill him.  He said that his name has been circulated to offices outside of [Town 1] and that they will eventually find him.  This claim is supported by views expressed in a letter from the [specified church agency in a major city].   

34. The Tribunal explained to the applicant that it had not been able to source any information confirming the existence of such lists and that independent country information confirms that the Muslim Brotherhood has experienced a severe crackdown since 2013, with many of its top and middle level leadership arrested.  In the circumstances, the Tribunal put it to the applicant that it does not appear that groups such as the Muslim Brotherhood are currently as organised as they once were and are less likely to act with the same level of impunity they enjoyed in past years[3].  In reply, the applicant referred to a recent attack on a church and the assassination of Egypt’s General Prosecutor.  Notwithstanding that the Tribunal is satisfied the applicant is known to be involved in returning Christian youth, either converted or at risk of conversion to Islam, to their families and the church in [Town 1], it is not satisfied that this involvement would be widely known in areas outside of [Town 1] as claimed.

    [3] DFAT Country Report, Egypt, 28 January 2014; DIBP Issues Paper, Egypt: Treatment of Coptic Christians and State Protection, 3 March 2015; Kennedy, G 2015 ‘Is this the End of Egypt’s Muslim Brotherhood’, Atlantic Council, 16 June; Said, O 2015, ‘After state crackdown and rumours of rifts, Brotherhood faces identity crisis’, Mada Masr, 14 August; Kirkpatrick, D and Sheik M, 2015, ‘Push for Retribution in Egypt Frays Muslim Brotherhood’, The New York Times, 5 August.

    Claimed attacks against the applicant and his family

35. The applicant claims his [shop] is opposite a mosque and that every Friday Muslims would block the entrance to his shop by spreading their prayer rugs over the street.  When he politely asked that this not happen he was insulted, humiliated and threatened with harm and told that his shop would be burnt down.  He closed his shop doors during those hours to avoid any danger. On another occasion his shop was vandalised.  The safety locks were filled with industrial glue and written on his door was “ya nusrany ya kafer” which means “you Christian infidel”. 

36. [In] November 2012, while working in his shop, he claims a few men entered and insulted him and called him “nusrany” which is a degrading word for a Christian and told him to stop selling [his products] since Sharia forbids it.  When he replied that he didn’t force anyone to buy from him he was insulted, humiliated and severely beaten.  His store was damaged and they took some of his [product] and threw it in the street.  They told him to close his shop or they would deal with him very harshly.  He reported the matter to the police but the officer refused to write down the whole story.  They made out that it was just a case of stealing.

37. The applicant also claims that his [child] was slapped on the face by a Muslim [student] at school and was sworn at and insulted for being a Christian infidel. When [he/she] complained to the teacher he was ignored.  Further, the applicant claims his wife was sexually harassed in the street by two men with beards who pulled her clothes, touched her body and called her “you kafer, wife of Magdy the Christian kafer”.

38. In about December 2012, two men with beards on a motorcycle attacked him in the street near [a location] in [Town 1].  They beat him with wooden sticks and called him “Infidel, dirt”.  He was told they would stop his service by force and the girls he attempts to help will remain Muslim.  They said they would “[assault him and] his wife”, make her a Muslim too and kidnap his children. 

39. When asked about the timeline of the attacks against him and his family the applicant stated that it started in about May 2011.  He said his [child] was slapped and called an infidel at school in October 2011 and his wife was sexually harassed on the street [in] November 2012.  The last incident at the shop occurred [a week later] which led to him closing his business [in] November 2012.

40. The applicant was asked why the [officer] whom he had offered financial favours to, and was willing to cooperate in locating the abducted girls, could not offer him any protection against these attacks.   He said that after the revolution the [government agency] was attacked and destroyed in the chaos and the security officer was retired.  In any event, the applicant expressed disdain that members of the police or security services would provide adequate protection to Copts.

1. At this point in the hearing the applicant was noticeably upset and repeatedly broke down in tears.  The Tribunal asked the applicant if he wished the proceedings to be adjourned but he insisted he wanted to continue.  The Tribunal found it difficult to explore these claimed abuses in detail under the circumstances but notes that the applicant has been consistent throughout in making these claims and referred to several of these events in his discussions earlier in the hearing. The Tribunal also notes that the Delegate was persuaded by the applicant’s evidence in this respect.  

2. The Tribunal accepts that the applicant was involved in activities assisting Christian youth at risk of forced conversion to Islam and that this activity was known within his community and has come to the attention of at least two prominent Muslim families.  Further the Tribunal accepts that such activity is likely to have drawn the ire of these families resulting in the claimed abuse detailed above.  The applicant’s claimed abuse of himself and his family members spans a period of months closely following his involvement in those activities.  As the Tribunal has found the applicant to be a credible witness overall, it has therefore afforded him the benefit of the doubt and accepts that these claimed incidents occurred.

3. After these incidents the applicant claims he suffered acute anxiety and depression and felt hopeless that he couldn’t protect his family.  He was so terrified he kept changing his residence every two or three weeks, moving between his home [and his relatives’] homes.  His wife also stopped going on the street, to church or anywhere.  He lost weight, found it hard to sleep and suffered from nightmares.  He was quiet and scared and not himself anymore.  He saw a psychologist and was given medication. 

4. The applicant has provided a letter from a treating Psychiatrist in Egypt dated [in] March 2013 confirming he presented with severe psychological shock which led to acute nervous tension, severe depression and a tendency towards isolation, anxiety, insomnia, loss of appetite and weight loss.  Having found no reason to doubt the authenticity of this report, the Tribunal accepts the applicant sought psychological care in Egypt at a time which follows his claimed abuse.

5. The Tribunal has some doubts about whether the applicant went into hiding around this time, alternating between staying at a church house [and homes of relatives].  As pointed out to the applicant at hearing, it would seem logical that any persons seeking to locate and harm him would search for him in such places and yet he claims they did not.  Nevertheless, given the Tribunal has found the applicant to be generally truthful, it has afforded him the benefit of doubt and accepts he exercised some caution in changing his residence from time to time.

6. The applicant claims that on [in] May 2013 around 1.30pm two masked men tried to kidnap his [children] and force them into a truck/car.  His [relative] was near the incident by chance and started screaming and asking other pedestrians for help.  Some pedestrians started gathering but were afraid to go to close as the kidnappers had weapons and were threatening to shoot.  By a miracle the kidnappers pushed the [children] away and drove off.

7. It was put to the applicant that it is conceivable this could have happened due to him being a successful businessman capable of paying a ransom.  He agreed it was possible but said he is convinced it was due to his church activities.

8. The applicant stated that after what happened to him he was very fearful for his children and he engaged a driver to take them to school and back.  He said that on [a specified date in] March 2015 the man was late to collect them and didn’t bring them back home.  He said he received a call to say that two men with automatic weapons had tried to kidnap them.    He said that since then his children have not attended any school.  The Tribunal put it to the applicant that it seems unlikely that armed men intent on such a serious crime would have simply given up when approached by pedestrians.  His response was that this was the Lord’s interference. 

9. The Tribunal notes the Delegate was not persuaded that this incident occurred, in part because of the inconsistency over the date on which the matter was reported to the police.  As submitted by the applicant’s representative it appears that an attempt was made to alert the Delegate to a translation error in this respect.  At hearing the applicant provided the Tribunal with email correspondence to this effect from his former representative.  A copy of an amended police report showing the date of the incident to be [the specified date in] March 2013 was produced at hearing.  Also during the hearing the Tribunal asked the interpreter to read the opening paragraph of the amended Arabic police report to see whether the date mentioned in that document was [that date in] March 2013.  The interpreter confirmed it was.  The Tribunal also asked the interpreter to read the opening paragraphs of the original police report submitted at the time of application to see what date was mentioned in that document.  The interpreter confirmed that document stated the date to be [that specified date in] March 2013.  In view of this, the Tribunal is satisfied that a translation error was made and that the correct date of the reported kidnapping incident is [that date in] March 2013 as claimed. 

10. The Tribunal asked the applicant how he was able to obtain a police report, referring to information contained in DFAT’s country report dated 28 January 2014 which says that the police usually prefer not to provide reports unless a suspect is questioned or charges laid.  Also the Tribunal asked the applicant why he bothered to report the matter at all given his belief that the police do not provide any protection for Copts.  He said given what had happened he wanted to at least try to get some justice.  He said they did question him but again did not conduct any investigation.

11. DFAT’S thematic report of 28 January 2014, titled Egyptian Copts[4], confirms that opportunistic attacks against Copts, including kidnapping, does occur and that there has been a rise in kidnappings of Copts since the January 2011 revolution, particularly in Upper Egypt where the applicant is from.  This information, together with the above explanation for the date error, and the Tribunal’s assessment of the applicant’s overall credibility, satisfies the Tribunal that the claimed kidnapping might have occurred. 

    [4] DFAT Thematic Report, Egyptian Copts, 28 January 2014

12. Lastly the applicant claims that an incident occurred where live ammunition was fired at his front door.  At the hearing he stated that this happened on [a] Sunday [in] March 2013 when the shops were closed.  He said he was at home and heard the shooting and people chanting.  He said that the people downstairs told him they had mentioned his name.  He did not report the matter to the police thinking it was no use doing so. Instead he decided to try to leave the country.

    [Country 2] Visa

13. The Tribunal questioned the applicant about a visa to [Country 2] which is contained in his passport and not yet expired.  The applicant said he was granted the visa [in] December 2012.  He reiterated that he was beaten on the street [two weeks later] and suffered physical injuries which required him to rest.  This is supported by a medical report on the Department’s file.  Also, the applicant informed the Tribunal that he was under investigation for a suspected [medical condition].  He said he went for x-rays and was told he should not travel.  He said he was later told the [condition] was dormant.  He said this situation combined with psychological exhaustion meant he was not in a fit condition to decide to go to [Country 2] where he knew nobody.  He said it was far preferable to try to come to Australia where he has a brother to rely upon for support. 

14. The applicant provided a medical report with his Protection visa application which says he underwent [an] operation [in] May 2013 requiring rest and medical treatment for a month after discharge which the Tribunal considers supports his claims about the prior existence of this condition in December 2012.   Whereas the applicant appears to have provided a different explanation to the Delegate for not travelling to [Country 2], namely that he was unwilling to travel without his family, he nevertheless also claimed to the Delegate that he never wished to travel to [Country 2] as he did not speak [the language] and had no family connections there.   

15. The Tribunal accepts the applicant had been the victim of physical and psychological abuse over a period of months before his visa to [Country 2] was issued.  Further, the Tribunal has found no reason to disregard the authenticity of the medical reports referred to above.  In the circumstances the Tribunal accepts that the applicant could have had various, plausible reasons for not travelling to [Country 2] at the time the visa was issued.  The Tribunal has not concluded that by not doing so he has undermined his claimed fear or the claimed incidents of abuse.

    Is there a real chance the applicant will suffer serious harm if he returns to Egypt

16. The Tribunal finds that the applicant is a Coptic Christian devoted to practicing his faith. However, the Tribunal does not accept he is unable to practice his religion in Egypt, free from daily horror, as claimed. In this respect, the Tribunal put to the applicant at hearing that Christianity is recognised in Egypt and Coptic presence in public life is accepted with there being prominent Copts in politics and business. Further the Tribunal noted that the new Constitution passed in January 2014 states that freedom of belief is absolute which is an improvement on past provisions[5].   DFAT’s Thematic Report on Egyptian Copts dated 28 January 2014 also provides that there are over 8 million Christians in Egypt and that despite it being a socially conservative country where Islam is the religion of the state, most Egyptians work, live and socialise together with little regard to each other’s religious identity.

    [5] DIBP, Issues Paper, Egypt:  Treatment of Coptic Christians & State Protection, 3 March 2015

17. Notwithstanding the above, the Tribunal finds the applicant was actively involved in his church in [Town 1] and was known for assisting Christian youth who were at risk of, or forced into, converting to Islam.  The Tribunal finds that the applicant’s involvement in such activities led to him being verbally and physically abused on a number of occasions by Islamist families opposed to Muslim conversions.  The applicant claims that his aggressors remain in [Town 1] and the Tribunal accepts this is likely.

18. In respect of the above, the Tribunal notes a letter of support provided by [a priest] of [named church] in [location], [Town 1] dated [in] March 2015.  This letter states that the applicant will be exposed to danger by the families involved in the attempted conversions of [Ms A] and [Ms C] who are still waiting and searching for him.  Further there is a letter from [a Coptic group in Australia] on the Department’s file which indicates that the [group] wrote to [the specified church agency in a major city] asking them to investigate the persecution of the applicant in Egypt.  A translated reply dated [in] May 2015 indicates that investigations were conducted and the findings generally mirrored the circumstances of the applicant’s claims.  Namely that he was involved in returning young Christian girls abducted by Muslim men for which his shop was smashed and his [stock] seized and that he lived through a series of other threats which led to him departing Egypt for Australia.  This letter also attests that the applicant remains under surveillance by these families who are intent on harming him. 

19. According to the UK Home Office, Christians in general are not at risk of persecution or ill-treatment in Egypt and the Tribunal considers this view to be supported by other sources including DFAT reports referred to elsewhere in this decision.  However, in areas outside the main cities, where Islamists have a strong foothold, and where there have been attacks on Christians, against their property, businesses and churches, the UK Home Office concludes that Christians will generally be at risk, particularly as the state is generally unable or unwilling to provide adequate protection.   Additionally, people falling within certain risk categories, including those accused of proselytising where the accusation is serious and not casual, will generally be able to show a real risk of persecution.[6]

    [6] UK Home Office, Country Information and Guidance, Egypt:  Christians, 14 July 2014

20. There is no statutory prohibition on conversion from Islam to other religions in Egypt and DFAT assesses that a person who converts to another religion from Islam would not normally be harassed or monitored by Egyptian authorities.  However, officials, including courts, interpret Sharia as forbidding Muslims from converting to another religion and refuse to recognise such conversions.  Significantly, the report also notes that any attempt to proselytise would likely be resisted by societal elements, particularly in rural and more conservative areas, and perhaps violently.  Further, the report states that community prejudice against Copts is pervasive but severity varies depending on geographic and socio-economic factors.  In poorer urban and rural areas, where Egyptians tend to be more conservative, discrimination and instances of harassment can be higher.  Rural areas generally have lower levels of law and order and higher levels of Islamist activity. The majority of sectarian and violent incidents in recent years have taken place in Upper Egypt.[7] 

    [7] DFAT Thematic Report, Egyptian Copts, 28 January 2014.

21. The USCIRF reports that neither the Constitutional Declaration nor the civil or penal code prohibits proselytising however the government imposes legal penalties on activities related to proselytizing by non-Muslims, including ‘disrupting social cohesion’.  According to USCIRF non-Muslim minorities generally refrain from proselytizing to avoid legal penalties and extra-legal repercussions from authorities and local Islamists.[8]

    [8] US Department of State 2014, International Religious Freedom Report 2013

22. In view of this information, and the applicant’s particular circumstances, the Tribunal finds that the applicant’s aggressors are likely to have a continuing interest in harming him for his involvement in returning youth they have converted to Islam back to Christianity should he return to [Town 1].  The Tribunal is satisfied there is a real chance the applicant will be harmed by the abovementioned Islamist families and that the harm, including severe physical abuse, would amount to serious harm. The Tribunal also considers that the serious harm which the applicant faces involves systematic and discriminatory conduct as required by s.91R(1)(c) of the Act, in that it is deliberate or intentional and involves selective harassment. Further, the Tribunal finds that the applicant’s religion is the essential and significant reason for the persecution.

23. The applicant claims he is unable to seek state protection against such harm because of his religion.  The Egyptian National Police are responsible for law enforcement nationwide and various sources, including DFAT[9] indicate that police investigative skills remain poor and they suffer from shortfalls in training and equipment.  While the Tribunal acknowledges the security situation has reportedly changed somewhat since 2013, and that police in urban areas are likely able to provide more effective protection, DFAT nevertheless notes that the Egyptian police is a reflection of the Egyptian population.   The increasingly conservative nature of Egyptian society is mirrored in the police force and particularly in rural areas, the police live in the community they are policing and are subject to local pressure to make choices that are congruent with dominant social mores. The USDOS report noted in 2013 that there were credible reports that security forces failed to prevent or respond to societal violence against Coptic Christians and other religious minorities. The UK Home Office’s report, Country Information Guidance, Egypt: Christians, also notes “In MS (paragraph 151(1)) the Upper Tribunal found that there was inadequate state protection for Coptic Christians”.[10] 

    [9] USDOS, 2013 Country Reports on Human Rights Practices – Egypt, 27 February 2014; DFAT Country Report, Egypt, 28 January 2014

    [10] UK Home Office Country Information and Guidance Egypt: Christians 14 July 2014

24. The applicant, despite his reservations about the police’s ability to provide protection, has provided evidence of him reporting matters to the police on two occasions but claims that no further action was taken.  The Tribunal accepts that despite these reports being made he experienced further attacks in close proximity which could indicate the police did not adequately investigate or act upon his claims.  In view of this, and in light of the above country information which the Tribunal considers does caste doubt upon the responsiveness of the police to attacks against Copts, the Tribunal accepts that adequate state protection is not available to the applicant in [Town 1] against the harm feared from non-state actors.

25. The Tribunal has considered whether the applicant could safely relocate to another area in Egypt to avoid serious harm but has concluded that this is not possible, or reasonable, in the circumstances.

26. DFAT assesses that by and large Copts enjoy a greater level of security in urban centres such as Cairo and Alexandria, which have large socio economically and culturally diverse populations which generally co-exist peaceably.   As noted above, DFAT also reports that there is some evidence that since July 2013 the police have sought to restore its presence and authority somewhat and a more substantial police presence in urban areas appears to allow Copts to live in greater security.[11] The Tribunal discussed this information with the applicant at hearing while acknowledging the situation is still fluid and that sporadic incidents of violence can still occur.  The Tribunal also pointed out to the applicant that no country is required to offer a guarantee of security to all its citizens.  The applicant rejected this reporting and insisted the security situation was still dire in Egypt.  He claimed that the new President himself has acknowledged the situation will not be fixed immediately.  He also referred to threats against Christians in other parts of the middle-east which he fears can easily spill over into Egypt.

    [11] DFAT Thematic Report, Egyptian Copts, 28 January 2014

27. The applicant stated that his is a special case as his name has been placed on a wanted list and that [an Islamic group], which deals with persons converting to Islam, is aware of his activities, as are the Salafists and Muslim Brotherhood, who have networks across the country.  He contended that sooner or later he would be located wherever he lives in Egypt.  As outlined earlier in this decision the Tribunal does not accept these organisations have the capacity to maintain such intricate intelligence networks, particularly since the military intervention in 2013, and does not accept this element of his claims.

28. In closing remarks the applicant’s representative stated that he was asked by [a Coptic group] in Australia, whom his firm represents, to attend the hearing personally despite him being located in Melbourne.  He said that [name deleted] is [an important Coptic leader] in Australia and that he reported to him that during a church conference he was approached by [another church leader from] [Town 1] and told that the applicant cannot return to Egypt.  He said [the leader from Town 1] informed him that the church in Egypt would have relocated the applicant’s family to another city in Egypt if that was possible.  He said they did not deem it possible and therefore placed the family in the [location] for their security.  He said that in providing such protection the church’s own security is also threatened.

1. Further, the applicant’s representative has submitted that the applicant will continue to advocate his religion if he returns to Egypt and that this will place him at risk of harm anywhere in Egypt.  The Tribunal notes this issue was not expressly submitted or explored during the Delegate’s interview with the applicant. 

2. Noting the Tribunal’s discussion, which appears earlier in this decision, of the applicant’s religious practices, the Tribunal is satisfied the applicant is deeply committed to the Coptic Church and that his practice of assisting persons back to Christianity is an integral part of his service to the Coptic Church.  On the basis of his religious convictions, and oral testimony, the Tribunal believes the applicant would take it upon himself to resume a role in helping to bring persons who have strayed, or been forced away from Christianity, back into the church, wherever he resides, if the circumstances arise.  The Tribunal considers this would include cases of converted Muslims converting back to Christianity and that this could be seen to be proselytizing. While the Tribunal acknowledges the applicant was able to stop his involvement in these activities at a certain time it is satisfied nevertheless that this was only done out of fear of persecution and it was always his intention to resume this work.  The Tribunal acknowledges the applicant cannot be expected to cease involvement in his religious beliefs or the practice of his faith and at hearing he persuaded the Tribunal that he considers it is his religious duty to ensure Christians remain within their faith.

3. The Tribunal considers the country information referred to above regarding conversion and proselytising applies to the whole country and if the applicant resumes this work on return to Egypt the Tribunal considers there is a real chance he will again encounter difficulties similar to that experienced in [Town 1].   The Tribunal considers there is a real chance that the applicant will be seriously harmed by Islamists for his involvement in conversion activities wherever he resides in Egypt. Despite there being signs of a recently improved protection environment in Cairo and Alexandria for Copts, the Tribunal is not satisfied, based on the balance of opinion before it, that Coptic Christians, and more specifically the applicant with his religious profile, can yet avail themselves of state protection against harm from non-state actors in such circumstances.

4. Further, it is widely accepted that even where the feared persecution is localised, a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him or her to do so.[12] The High Court has endorsed this proposition, explaining that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.[13]

   [12] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR, reissued 2011) at [91] (‘Handbook’).

   [13] SZATVv MIAC (2007) 233 CLR 18 at [24].

5. During the hearing the applicant advised that his [siblings] are currently living in Cairo having moved there to avoid harassment resulting from his activities.  He informed the Tribunal that they are each living independently in rented apartments.  That said, he said [one sibling] is still trying to establish a [business] and [the other sibling] is not working].  

6. While the Tribunal considers the applicant could expect to receive some support from his relatives in Cairo if he were to relocate there the Tribunal has also had regard to the applicant’s psychological condition in assessing whether it is reasonable for him to do so. During the hearing the applicant spoke repeatedly about his inability to face a situation whereby he would constantly be in fear for his life and not knowing when he might again have to move.  As noted elsewhere in this decision the applicant was prone to breaking down during the hearing when reliving his past experiences.  Also, the Tribunal accepts that there is a real chance he could again encounter harm arising from his religious activities. 

7. In considering this issue the Delegate noted that the applicant had not provided evidence to indicate he continues to suffer any psychological issues.  At the time of hearing the Tribunal had before it a medical report by [a] Consultant [Psychologist], dated [in] February 2015 which diagnoses the applicant as suffering from Post-Traumatic Stress Disorder and Depression, having extremely severe depression, anxiety and stress.  In the Psychologist’s opinion, the applicant’s mental health is only likely to improve when his psychological vulnerability is abated.  The Tribunal considers this is unlikely to happen if the applicant is required to return to Egypt at this time when the country’s security situation remains fluid and it assesses there is a real chance his religious activities will result in him experiencing further harm. After the hearing, the applicant provided a further report by the same Psychologist dated [in] November 2015.  This report confirms the above diagnosis and opinion and indicates that the applicant is undergoing ongoing treatment.   The Tribunal has concluded that in the circumstances it would not be reasonable for the applicant to relocate to Cairo or anywhere else in Egypt.

8. For the above reasons the Tribunal finds that the applicant has a well-founded fear of persecution in Egypt due to his religious beliefs and practices. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

   Does the applicant have the right to enter and reside in a third country?

9. The applicant holds a [Country 2] [visa] which was issued [in] December 2012 and is valid until [December] 2017.  This visa allows the holder to travel to a [Country 2] port of entry and request permission of [Country 2 officials] to enter the country.  [Details of visa deleted][14].

   [14] [Source deleted].

10. If the applicant was to attempt to travel to [Country 2] on this visa he will be required to explain the purpose of his visit to [Country 2 officials] at the port of entry, who will then decide whether to grant admission and for how long.  If the applicant were to disclose that he intends to seek protection in [Country 2] (which the Tribunal is satisfied he would) then his visa may be subjected to cancellation at the port of entry. 

11. In view of the above the Tribunal does not find that the applicant has the right to enter and reside in [Country 2] at the time of decision.  Accordingly, s.36(3) of the Act does not bar the applicant from Australia’s protection obligations.

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.

    Tania Flood

    Member