1420577 (Refugee)

[2017] AATA 171

1420577 (Refugee) [2017] AATA 171 (20 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420577

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Filip Gelev

DATE:20 January 2017

PLACE OF DECISION:  Melbourne

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 January 2017 at 3:43pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Christians – Particular social group – Professionals – Lack of state protection

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES

Randhawa v MILGEA (1994) 52 FCR 437

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, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT 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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Section 499 Ministerial Direction

16. 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

17. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of reference

18. Based on the applicant’s passport, a copy of which was provided to the Department of Immigration, and his written and oral evidence, the Tribunal accepts that the applicant is a national of Egypt. Accordingly, the Tribunal has assessed his claims against Egypt for the purposes of s.36(2)(a).

19. On the evidence the Tribunal finds that the applicant does not have the right to enter and reside in any third country, pursuant to s.36(3) of the Act.

    Background and claims

20. The applicant is a Coptic Christian born in [Town 1], in Upper Egypt (the south of Egypt), on [date]. He is single and has no children.

21. He grew up in [Town 1] in Upper Egypt. He said that he lived there until 2006 when he moved to [Town 2], also in Upper Egypt. In 2008 he moved to Cairo. He was given credits for all the subjects he completed in [Town 2]. He completed the degree in Cairo, but not the subsequent [training]. He said that he completed [some of the training] in [Town 1] before leaving the country.

22. The applicant said that his mother turned [age] this year. His father passed away. She is still working [in] [Town 1]. He said his [grandfather] passed away and now his mother is taking care of his grandmother. He said that if he has to go back to Egypt, he will try to visit his mother once every one or two months.

23. The applicant has one [sibling], who is still studying.

24. The applicant arrived in Australia [in] June 2013.

25. At the Tribunal hearing the applicant said that he had suffered discrimination all his life, but things deteriorated after the Revolution. He said that he has evidence that Al-Azhar (religious body which issues fatwas) is anti-Christian. He said that whenever he heard that anyone was to go to Al-Azhar, he (and other Christians) would be scared of this person. He said that things are so bad that in the current political situation Al-Azhar is considered moderate.

26. The applicant told the Tribunal that the Christians in his school were a minority and were constantly bullied and beaten. He said that he would often leave school early to avoid problems. One day a Muslim boy was harassing him. The applicant tried to ignore him and the boy became angry, grabbed the chain the applicant used to lock his bike and hit him on the head. The applicant was bleeding. He said that he did not get stitches done, because he did not want to. He went to the police with his father, but the police did not want to take the complaint – the other boy was from a big Muslim family.

27. In a statutory declaration, dated [August] 2013, he said that he his problems began following the revolution in Egypt in 2011.

28. One incident occurred when the applicant was on his way home from a friend’s house in [a certain town] (according to Google maps [this town] is in the south of Cairo). He was waiting for a mini-bus. The police were chasing a group of people and the applicant was caught up in the chase. The police took him away and falsely accused him of carrying a weapon. They took him for questioning to the police station, where they treated him “extremely poorly”. The general prosecutor interrogated him and while he was held in prison he was “discriminated and beaten” by police. He believes this was because of his Christian religion. He was released without charge.

29. The applicant provided in support of his case a police report and a report from the prosecutor’s office, both issued [in] February 2011. The police report accused the applicant of possessing “a [weapon]”, assaulting a policeman and smashing a citizen’s car. The applicant denied all the accusations and tried to explain that he was arrested by mistake. According to the prosecutor’s report, the applicant explained that he was arrested together with others and there may have been a mix up; the seized weapons did not belong to him. The prosecutor wrote in his report that he decided to release the accused “for lack of necessary evidence of his possession of the weapons apprehended”.

30. He told the delegate that he was kept at the police station from 2 to 7 o’clock when he was transferred to the public prosecutor. The applicant said that the prosecutor apologised to him and acknowledged that the applicant had been treated unfairly. The applicant told the delegate that while this may be what happened to him, he knows other people who had been arrested and then had charges fabricated against them.

31. At the Tribunal hearing, the applicant claimed that following the Revolution in early 2011, the persecution was constant. He would be mocked and sometimes he would be told that he is lucky to be alive, because this is a Muslim country.

32. The Tribunal pointed out that the applicant not only finished high school, but was able to get into university and study [a] prestigious degree – and as the applicant himself has claimed he fears harm as [occupation], because [professionals] are perceived as wealthy. The applicant said that he was able to get into university because the end of school exam results are anonymous so the university did not know that he is a Christian when they admitted him.

33. He explained that once they get to university, especially in Upper Egypt, Christian students are discriminated against. The university selects the top 50 or 100 students and offers them positions at the university. [Town 2] Univeristy would select only a few Christians even though there are about [number]% of students who are Christian. He said that one of his co-students took the university to court to get such a position. He won the case and he was given a position, but unlike Muslim students he was not allowed to choose his position.

34. At interview with the delegate, the applicant said that he was worried that he may be kidnapped. He described several incidents of kidnappings of various people, including cases discussed in the media, a distant relative of the applicant (who managed to escape from his kidnappers) and a relative of a friend of the applicant (this man was found dead).

35. The applicant also made a general statement in his statutory declaration that fellow [students], who are “qualified Christian [occupation]” had “expressed to [him] the persecution they have endured as a result of being Christian professionals.”

36. The applicant told the delegate that in order to work as [occupation] he needs to [details of training]. He said that there is a shortage of [occupation] in Egypt and after graduation [details of training]. This issue is discussed further below, under the heading “Well-founded fear of persecution”.

37. At the Tribunal hearing, the Tribunal also discussed the questions of state protection and relocation with the applicant. Ultimately, in relation to relocation, the Tribunal did not accept the claim that the applicant will be unable to find any type of employment (he asserted that to get work as [occupation] he needs to work in Upper Egypt in his home area for [a period of time] and that he would not be able to find any other work in any field).

    Well-founded fear of persecution

38. The applicant impressed the Tribunal as an intelligent and honest witness, who gave coherent, logical and plausible evidence. There were minor embellishments (e.g. in relation to his ability to find work and live in Cairo), but they were due to his genuine fear of persecution if he were to return to Egypt.

39. The applicant was born and raised and completed all of his schooling and a part of his university degree in Upper Egypt. His father is deceased, but his mother and [grandmother] live in Upper Egypt. The Tribunal also accepts the applicant’s evidence that prior to coming to Australia he had moved from Cairo back to his home town of [Town 1]. Therefore, the Tribunal finds that [Town 1] is his home area and has assessed his claims against Upper Egypt where [Town 1] is located.

40. He described to the Tribunal a history of harassment and discrimination, because of his religion, stretching back to his school years in Upper Egypt. In more recent years, the most serious incident he was involved in was a mistaken arrest. The applicant acknowledged to the delegate and the Tribunal that he received an apology from the prosecutor in the case; and that he, personally, had not suffered serious harm amounting to persecution since the Revolution in early 2011.

41. There is no doubt that the applicant is very well educated by any standard and despite belonging to a religious minority in Egypt, Christians, he has been given opportunities not available to most other people in his home country.

42. However, the question the Tribunal must answer is whether the applicant faces a real chance of persecution for a Convention reason now or in the reasonably foreseeable future. Past harm is only an indicator of the likelihood of future harm.

43. Coptic Christians comprise some 10 per cent of Egypt's population of 83 million. They are present in most parts of the country and are represented at all levels of society. Copts have access to all levels of education – the applicant in the present case is an example of a person who has been able to complete a [degree] – and are present in most areas of employment. There are prominent and influential Copts in politics, business and the arts.

44. However, country information also indicates that Copts have long faced some degree of societal discrimination. Few Copts hold senior positions in institutions such as the military, universities and the public service. Discrimination and prejudice are more of a problem in poorer urban and rural area.

45. Sectarian tensions have increased in Egypt since the 1970s, due in part to economic problems and to weakening of law and order mechanisms. The resulting outbreaks of sectarian violence have mostly taken the form of vandalism and destruction of property and have occurred mostly in Upper Egypt, the applicant’s home area.

46. Country information, including from DFAT (Country Information Report Egypt, 24 November 2015) indicates that the situation in the last three or so years has improved, after a deterioration in the security situation in 2011 (the so called Revolution which led to the resignation of President Mubarak after 30 years in office) and again in the summer of 2013 (after the removal from power of President Mohammed Morsi who was formerly from the Muslim Brotherhood. The US Commission in International Religious Freedom in its 2016 report on religious freedom states:[1]

    President Abdel Fattah al-Sisi continued to make public statements encouraging religious tolerance and moderation and attended a Coptic Christmas Eve mass for the second consecutive year. Furthermore, there were notably fewer sectarian attacks against Christians and other religious minorities, and investigations and prosecutions continued for the unprecedented scale of destruction of churches and Christian property that occurred in the summer of 2013.

    [1] USCIRF Annual Report 2016: Egypt, USCIRF, 29 April 2016, accessed at on 12 October 2016.

47. Turning back to the applicant’s circumstances, the Tribunal finds that the applicant has completed his [degree], even though he may not have completed the [training], which would allow him to become [occupation].

48. The country information does not support the proposition that the applicant faces a real chance of persecution for reasons of his religion. This is the case in urban centres and in Upper Egypt. The DFAT Thematic Report on Coptic Christians, for examples, states:[2]

    ...most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other's religious identity.

    However, small-scale disputes (such as neighbourhood disagreements) can adopt religious overtones and escalate into community-level violence. This is particularly the case in poorer rural and urban areas. Spikes in communal tensions can also coincide with broader political upheavals.

    [2] DFAT Thematic Report on Egyptian Copts, 24 November 2015, at 2.20.

49. Prior to the hearing the Tribunal was of the view that the claim that [graduates] have to [details of training] is not supported by independent country information. [Details deleted].[3]

    [Details deleted].

    [3] [Details deleted].

50. After the hearing, however, the Tribunal received further information from the applicant and his representative. According to an online report in a [publication], in January 2016 [there will be] a new resolution or regulation for [their training].

51. Another document, dated 27 October 2016, appears to be a copy of the actual “resolution”. It states that [occupation] is obliged – following the completion of their studies [details deleted]. The applicant provided another, very similarly worded letter (undated) from [Town 1] [employer].

1. The applicant will have to return to Upper Egypt to work [in] his home area and as a result he will be known to be a qualified [occupation]. The Tribunal accepts that the applicant, if he wants to work as [occupation], will have to return to Upper Egypt.

2. The applicant claims that he is at higher risk of harm than other Christians. He states that he is at risk of being kidnapped, because he is a Christian and perceived to be wealthy by virtue of his being a qualified [occupation]. Country information indicates that Christians and in particular Christians who are perceived to be wealthy are targeted for kidnapping.

3. The most recent DFAT Thematic Report on Coptic Christians, states this:[4]

   4.31 Since the January 2011 revolution, there has been a general deterioration in law and order throughout Egypt which has resulted in an increase of violent crime against all communities. The Coptic community suffered particularly from an increase in kidnappings, particularly in Upper Egypt, due to a perception that Copts were more willing and able to pay ransoms. DFAT is not able to determine the number of Christians who were kidnapped following the 2011 Revolution. In most instances, families paid the demanded ransom, and the authorities did not pursue the kidnappers.

   [4] DFAT Thematic Report on Egyptian Copts, 24 November 2015, at 4.31.

4. In February 2016, Christian Freedom International reported that a boy had been kidnapped in Fayoum governorate.[5] The article said that Coptic Christians are held as hostages until a ransom is paid for them and the size of the ransom is based on the family’s ability to pay, nevertheless, some kidnappings have ended with the deaths of the hostages.

   [5] “Prary for Christian Boy Kidnapped in Egypt”, Christian Freedom International, 16 February 2016, accessed at on 18 October 2016.

5. The Christian Post reported in February 2016 that hundreds of Coptic Christians had come out to protest against the alleged kidnappings and killings of Copts in Egypt.[6]

   [6] S. Zaimov, “Thousands of Coptic Christians Protest Targeted Kidnappings and Killings in Egypt”, The Christian Post, 9 February 2016, accessed at on 18 October 2016.

6. The Egyptian Union of Human Rights Organization (EUHRO) reports that in the six months to September 2014, there were 239 kidnappings from Minya, Assuit, Sohag and other governorates, with the majority of cases occurring in Minya.[7]

   [7] Nadler, A 2014, ‘Security forces treat Copts as badly as under Mubarak rule: EUHRO Head’, Daily News

7. The website Al-bab.com reported the following in October 2015:[8]

   [8] “Targeting Christians in Egypt”, Al-bab,16 October 2015, accessed at on 20 January 2017.

   Targeting Christians in Egypt

   In its latest annual survey of religious freedom, the US State Department highlights the kidnapping and extortion of Christians in Egypt. Church leaders say this is on the increase and according Pope Tawadros, head of the Coptic church, it is among the most significant problems faced by Egypt's Christian minority who are thought to number around eight million. Police often appear complicit or reluctant to take action and this, the report says, has "fostered a climate of impunity". 

   Although Muslims are also victims of such crimes, Christians have been disproportionately targeted in Upper Egypt and, to a lesser degree, in Cairo and the north, the State Department says. "According to media reports, interviews with Coptic victims’ attorneys and Coptic clergy, Christians in the Minya, Qena, Assiut, and North Sinai Governorates were specifically targeted for kidnappings for ransom."

   Regarding developments in Egypt during 2014 – the year covered by its report issued this week – the State Department says:

   "Three kidnappings took place in June in North Sinai. The family of one of the victims, businessman Gamal Shenouda, paid EGP 300,000 ($41,958) in ransom to the kidnappers, according to a local civil society organisation. 

   "In Naga Hammadi, Qena [province], the captors of Malak Zaghloul, a merchant, returned him on July 7, five days after he was kidnapped, after his family paid a ransom of an undisclosed amount. In comments to the press in July, a Coptic Orthodox religious leader complained of the frequency of kidnappings in Naga Hammadi and blamed security agencies for their inability to protect Copts. He stated that the number of abduction cases exceeded 70 in the city in the past three years."

   According to Egyptian government statistics published last year, the total number of Christians kidnapped since 2011 was 140, 96 of whom returned.

   In March last year, a local human rights organisation documented eight cases of extortion and 12 cases of robbery and kidnapping targeting Copts in Shamia village, from which the perpetrators obtained more than EGP 1.5 million ($210,000) in ransom payments during the period September 2013 to January 2014. 

   The State Department adds:

   "Human rights activists and Christian leaders stated police and security forces often failed to respond to the kidnapping and extortion of Christians in Upper Egypt, including targeting of landowners. They said that in some areas of Upper Egypt perpetrators forced Christians to pay 'protection money'. Police reportedly told families of Christian kidnap victims to 'pay the ransom and keep quiet'. One Christian leader said that the extortions were divesting Christians of their wealth and dignity.

   "In September [2014] attackers reportedly shot and killed a Coptic dentist in Assuit for refusing to pay protection money. In comments to the press, his family said thugs had been threatening to kill him for over a year if he did not pay protection money. They also said he filed several complaints against the individuals, but the police were unresponsive. There were reports of increasing land thefts from Christians, especially in Upper Egypt."

   In another case (not mentioned in the State Department report) Wadie Ramses, an orthopaedic physician, was abducted from the clinic that he owned in el-Arish, 200 miles northeast of Cairo. He was held for three months and eventually released on payment of a $200,000 ransom. He was also forced to abandon his clinic and lost his income from a local military hospital where he acted as a consultant.  

   Ramses's account of conversations with his captors leaves little doubt that he had been targeted as a Christian.

   Ramses was also highly critical of the police and claimed that some of those who beat him while in captivity were members of the security forces. According to the Catholic website, Crux:

   He insisted that if the police genuinely wanted to liberate him, they had every opportunity to do so. Every eight to ten days, he said, he was driven to see the “big boss,” at which time he’d speak on the phone with his son to discuss ransom arrangements. It was always the same number, he said, and often these calls would last for two hours.

   “My son was able to track down the place, because I always called from the same location and the same phone,” Ramses said. “The police had at least 13 opportunities to rescue me, so how is it they never found the place?”

8. According to Christian Solidarity International from 2013, with an updated from September 2014, after August 2013 (footnotes omitted):[9]

   armed gangs exploiting a general lack of security have begun targeting Christians for abduction for ransom, since Christians are perceived as more likely to be wealthy, and less likely to receive protection from family connections or the police. In November 2013, Christian leaders reported that more than 20 Christians had been abducted since August, and over 100 since the 2011 revolution.9 A CSI survey of local Christian press reports shows more than 50 Christians being abducted in Egypt since that report.10 Christian activists in Nag Hammadi report as many as 42 kidnappings of Christians in their town alone since November 2013.

   [9] “Genocide Alert: The Arab Republic of Egypt”, Christian Solidarity International, September 2014, accessed at on 20 January 2017.

9. The motivation behind the kidnapping of Copts varies. Sometimes it is financial, sometimes it is to force kidnapped women and girls to convert to Islam and marry their abductors.

10. Reputable country information sources, such as the United States Department of State, consider that Christians are targeted for kidnap because of their perception of wealth and due to a lack of police protection and legal recourse.[10]

    [10] US Department of State 2014, 2013 Report on International Religious Freedom –

11. A November 2013 report by the Carnegie Endowment quotes an unidentified official from the Ministry of Interior as stating:[11]

    Kidnapping Christians is an easy way to make money… [They] don’t have the tribal or clan backup that will deter kidnappers and they are happy to pay the ransom to gain the freedom of their loved ones.

    [11] Brownlees, J 2013, “Violence against Copts in Egypt”, Carnegie Endowment, at p. 15, accessed at

    on 10 December 2013, CX316406.

12. According to another 2013 article, the province of Minya in Upper Egypt is already called the “kidnapping capital”.

    And since Christian doctors and pharmacists have become kidnappers’ favourite target, some rural communities have found themselves without medical assistance. Indeed, doctors are afraid to venture out into desert streets that are far out from the city as this is where the risk of ambushes is highest. This type of crime has become more and more frequent since Morsi’s ousting, a clear sign that it is linked to the current political situation in the country.

13. The Tribunal has noted the country information that Coptic Christians are targeted for kidnapping and the Tribunal accepts on the basis of the country information that the applicant has the profile that would make him a possible target as such.

14. Country information confirms that professions particularly [profession] have been targeted for kidnaping, especially in Upper Egypt. Given the applicant’s profile that as a Christian [professional], there is a real chance, not a remote chance that he would be targeted.

15. On the basis of the country information, the Tribunal finds that the applicant will be targeted for reasons of his religion in combination with his profession, which causes him to be perceived as wealthy.

16. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

17. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

18. Where a person is targeted for their actual or perceived wealth, there is no Convention ground nexus. However, the country information indicates that Christians in particular are being targeted for kidnappings both because they are seen as being wealthy on account of being Christians and because Christians are seen as being easier targets. In addition, the applicant will be targeted, because [professionals] are perceived as being wealthy.

19. The Tribunal finds that the applicant belongs to the particular social group of Christian [professionals]. The country information cited above indicates that members of this particular social group are targeted for harm for reasons of their membership of that group. This Convention reason constitute the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

20. While the majority of people who are kidnapped are released after a ransom is paid, the applicant’s family would not be able to afford a ransom and he is at risk of being killed as a result. The applicant’s father passed away and his mother’s income is modest. He has one [sibling], who is still a student. The country information cited above indicates that some people are killed if their families are unable to pay a ransom.[12] The kidnapping itself constitutes deprivation of liberty. The Tribunal is satisfied that being kidnapped or killed amounts to persecution (ss.91R(1)(b) and (2)).

    [12] See e.g. “Targeting Christians in Egypt”, Al-bab,16 October 2015, accessed at on 20 January 2017 – 44 of 140 people who were kidnapped did not return; see also “Prary for Christian Boy Kidnapped in Egypt”, Christian Freedom International, 16 February 2016, accessed at on 18 October 2016.

21. The Tribunal finds that the harm would be systematic and discriminatory as it would be selective, deliberate and non-random. It would be directed at the applicant for reason of his membership of a particular social group as required by s.91R(1)(c).

    State protection

22. The most recent DFAT Thematic Report on Copts in Egypt states that in urban areas the state has the capacity and willingness to provide protection to Copts (Tribunal’s italics).[13] The applicant comes from [town 1], a rather small city of some [number] people.[14]

    [13] DFAT Thematic Report on Egyptian Copts, 24 November 2015, at 5.4

    [14] [Information deleted].

23. However, the Report also states:[15]

    5.5Response times and rates by security forces in relation to incidents of communal violence are not uniform and can be slow. However, this is an issue that impacts the wider community as well. Reported slow responses to complaints are at least in part due to the local police force being ill-equipped and under-resourced, particularly in rural areas.

    [15] DFAT Thematic Report on Egyptian Copts, 24 November 2015.

24. More recently, The Economist reported that[16]

    The government frequently failed to prevent, investigate, or prosecute crimes targeting members of religious minority groups, which fostered a climate of impunity, according to a prominent local rights organisation. The government often failed to protect Christians targeted by kidnappings and extortion according to sources in the Christian community, and there were reports that security and police officials sometimes failed to respond to these crimes, especially in Upper Egypt (in the country’s impoverished south).

    [16] CX6A26A6E14889: "One step forward, two steps back: The troubled lives of Egypt’s Coptic Christians ", Economist, The, 11 December 2016, >

    On the basis of the applicant’s evidence and the country information, the Tribunal finds that adequate state protection would not be available to the applicant in his home area of [Town 1] in Upper Egypt, some 6 hours by car from the capital.

    Relocation

25. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.

26. The tribunal has considered whether the applicants could relocate to another area of Egypt, specifically to Cairo in order to escape the harm feared because, even though he is not from there, he lived in the capital for several years prior to coming to Australia.

27. The Tribunal finds that the risk of kidnapping faced by the applicant is lower than in Upper Egypt, but not remote or far-fetched. Accordingly, the Tribunal finds that relocation is not a viable option for the applicant.

28. Furthermore, even if the applicant were to move to Cairo, the Tribunal accepts his evidence that he will travel regularly, about once a month, back to Upper Egypt, to visit his family. He could then become the victim of a kidnapping while travelling back and forth between Cairo and [Town 1].

29. Having regard to the evidence before it, the Tribunal finds that the applicant faces a well-founded fear of persecution throughout Egypt.

30. For the reasons given above, 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).

    DECISION

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

    Filip Gelev
    Member

    
    
    

Egypt, 21 September, Accessed 20 January 2017, CX1B9ECAB6489.

Egypt, 28 July, UNHCR Refworld Accessed 18

February 2015 CX325230.