1503153 (Refugee)

[2015] AATA 3680

1503153 (Refugee) [2015] AATA 3680 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503153

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Rea Hearn Mackinnon

DATE:11 November 2015

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 11 November 2015 at 5:45pm

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] December 2011 and the delegate refused to grant the visa [in] July 2012. The Tribunal differently constituted affirmed the decision to refuse the visa on 30 November 2013. The Federal Circuit Court remitted that decision [in] February 2015.

3. The applicant appeared before the Tribunal on 6 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. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4. The Tribunal obtained evidence from [Father A of Church 1] in [suburb] by telephone after the hearing.

   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.

10. The issue in this case is whether the applicant will be harmed in Egypt because of his religion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

11. The applicant was born in [year] in Menoufia, Egypt. He is a Coptic Christian. His father was a Coptic Orthodox priest in Menoufia. After his father died in 1998, he and his mother and [sibling] moved to [a suburb] in Cairo where he lived from 2001 until 2008 when he came to Australia on a student visa. His [sibling] is an Australian citizen. His mother was granted a protection visa [in] November 2011. The applicant moved to [his city of residence] about a year ago.

12. The Tribunal considers the applicant to have been a credible witness - his evidence regarding his church activities in [his city of residence] was supported by [Father A] – and the Tribunal has no reason to doubt his evidence regarding his church involvement in Egypt.

    Claims

13. When he applied for a protection visa in 2011, the applicant claimed to fear harm from Islamic extremists in Egypt and the Egyptian authorities because the situation for Coptic Christians in Egypt had deteriorated following the January 2011 revolution and the authorities were not providing protection and had in fact been involved in killing Christians in an attack outside the Maspero building in Cairo on 9 October 2011.

14. Before the Tribunal, the applicant claimed to fear harm from Islamic extremists because of his religious beliefs and activities. His claims are discussed below.

15. The applicant has a strong connection to the Coptic Church through his father, who was a priest and his cousins, one of whom is a monk and one of whom the applicant stated has now  been ordained as a bishop at a monastery in Alexandria.

16. The applicant was devout in Egypt. He was ordained as [a position] ([description of role]) and [another role] in Menoufia 1999. He attended church regularly in Cairo and was ordained as [a position] in 2008. In Australia, [A priest at a certain church] wrote in a letter dated [in] December 2011 that the applicant attended church at least twice a week and was involved in general church services including being a regular chanter in the liturgies and serving in the youth meeting; and the applicant completed a discipleship program at the [church] in [Australia in] December 2012. The applicant provided oral evidence to the previous Tribunal regarding his deeply held religious beliefs and his attendance at two protests in 2010 following the bombing of a Coptic church in Alexandria and a protest in 2011 following the Maspero.

17. At the hearing before this Tribunal, the applicant provided further evidence about his religious beliefs and activities in Australia. He stated that he attends services at [a church in Australia] on Mondays Wednesdays and Fridays and helps out with the Sunday School; and also attends services at [Church 1] in [suburb].

18. The applicant provided a letter from [Father A of Church 1 in] November 2015 in which [Father A] states that the applicant is “a highly dedicated and committed Christian” and “pro-active in church services and activities and serves as [a position] in the Divine Liturgy”. [Father A] describes himself as Parish Priest and University Chaplain.

19. The applicant told the Tribunal that [Church 1] has an active ministry on the campus of [University 2] with which he is involved. He said that he and other “trained servants” of the church have a stall on campus each Saturday (as do other churches).They approach students, mostly overseas students, and give them brochures and answer their questions. The applicant said that he attends a church meeting about this ministry every Sunday evening and also attends a fellowship meeting for overseas students every Friday night. He often picks up the students from campus and takes them to the meeting. He also helps the priest conduct services at the church.

20. The applicant stated that he would continue to evangelise if he returned to Egypt. He stated that he suffered ongoing harassment and discrimination in Egypt as a Christian (such as mocking of his name by fellow students and bullying by teachers) but thought this harassment was personal, because of a weakness in his personality. After he came to Australia, however, he realised that this harassment was because of his religion. In Australia, he realised that he had rights as a Christian. He stated that, if he returns to Egypt, he will be compelled to promote Christianity and explain the truth of Christianity. He stated that he will not seek to convert Muslims as the true Christian position is to respect all religions but Muslims are superior and disrespect Christianity and are ignorant about Christianity and he wants people to know the truth about Christianity. He will raise questions and ask people to listen. He will promote his faith as the faith to follow but will not try to offend Muslims. He stated that the material he uses in the ministry at [University 2] relating to questions in the Quran and in the Bible is based on defending the Bible not disrespecting the Quran. He stated that he does not care if people convert or not; he just wants them to know that he believes in God and to accept that Christians are human beings too.

21. When asked how he would do this in Egypt, the applicant said that he would do it privately. He would go onto campuses like he does now. He will approach people on the street and have conversations. It seems natural to him now to do this. He would approach the church and find out how he can help. His faith is still developing. His faith is a living faith, an action faith. He only has one chance in life to act.

22. [Father A] confirmed the applicant’s evidence regarding his church activities. He told the Tribunal that he has been a university chaplain for 11 years, at several universities including [University 2] which is [close] to his church and that he is the third priest (out of four) in order of ordination at the church. He stated that the applicant diligently attends the liturgical services and is heavily involved in the church’s mission evangelism with overseas students at [University 2] including distributing pamphlets and gospels on campus and that he prepares material and programs for the Christian fellowship meetings with overseas students on Friday evenings. He stated that the church has an expanding ministry with overseas students and that the Diocese of [the city] is engaged in mission work in [other countries] and runs an orphanage in [another country]. He described the applicant as very committed to the mission work and very creative and compassionate.  He also stated that the applicant would struggle immensely to fit in with the constraints on the Coptic Church in Egypt.

23. The Tribunal accepts that the applicant is devout and genuinely believes he has a mission to promote Christianity. The Tribunal accepts that he has a strong view about protecting or promoting both Christianity and the human rights of Christians in Egypt. The Tribunal accepts that he may engage in both religious discussion or evangelism and political protest or activism in Egypt in the course of promoting and protecting his religious beliefs.

24. Coptic Christians comprise about 10% of the Egyptian population and number about 8 million. Christianity is a recognised religion in Egypt and the Coptic Orthodox church is the largest denomination.[1] The Coptic community is politically and socio-economically diverse and the Department of Foreign Affairs and Trade (DFAT) has reported that day-to-day life in Egypt is ‘not overly affected by sectarian differences’; and that whilst there has been harassment and intimidation of Christians by conservative Muslims, the vast majority of Christians in Egypt do not face violence in their daily lives. [2] The UK Border Agency has also reported that, whilst there are repeated instances of sectarian violence, Christians in Egypt are not in general at risk of persecution or ill treatment.[3]

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

    [2] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January

    [3] UK Border Agency, 2014, Country Information and Guidance Egypt: Christians, 30 June

25. There has been an increase in sectarian violence in Egypt in recent years which has coincided with increased Islamist sentiment (especially in poor and rural communities). Islamist groups were particularly empowered after the fall of the Mubarak government and the election of the Muslim Brotherhood backed President Morsi. There was then a significant increase in sectarian violence targeting Coptic Christians in July and August 2013 coinciding with the ousting of Morsi on 3 July 2013.[4] This violence was reportedly a backlash by pro‑Morsi and Muslim Brotherhood supporters because of widespread Coptic participation in the anti Morsi protests[5]  and perceived Coptic support for Morsi’s removal.[6] The interim government cracked down on Islamists however, jailing thousands on Muslim Brotherhood supporters. DFAT has reported that the situation has calmed since August 2013 but cautions that ‘potential exists for localised sectarian clashes and violence’.[7]  Other reports also indicate that the number of attacks against Copts has ‘subsided’[8] from the ‘unprecedented’[9] volume of attacks in July and August 2013. Sectarian tensions between Christians and Muslims remain however[10] and incidents of violence occurred during 2014.[11]

    [4] Freedom House 2014, Freedom in the World – Egypt, 23 January; Human Rights Watch 2014, World Report 2014 – Egypt, 21 January; Amnesty International 2013, How long are we going to live in this injustice? Egypt’s Christians caught between sectarian attacks and state inaction, October; Egyptian Initiative for Personal Rights 2013, Unprecedented spike in scale of sectarian violence and reprisals against Copts, 25 August; Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January

    [5] Egyptian Initiative for Personal Rights 2013, Unprecedented spike in scale of sectarian violence and reprisals against Copts, 25 August

    [6] Freedom House 2014, Freedom in the World – Egypt, 23 January; Amnesty International 2013, How long are we going to live in this injustice? Egypt’s Christians caught between sectarian attacks and state inaction, October; Egyptian Initiative for Personal Rights 2013, Unprecedented spike in scale of sectarian violence and reprisals against Copts, 25 August; Hendawi, H 2013, ‘For Christians, disappointment and fears replace dreams of equality in post-Morsi Egypt’, Associated Press, 16 November, Montreal Gazette 

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

    [8] US Bureau of Diplomatic Security 2014, Egypt 2014 Crime and Safety Report, 18 March

    [9] Human Rights Watch 2014, World Report 2014 – Egypt, 21 January; Amnesty International 2013, How long are we going to live in this injustice? Egypt’s Christians caught between sectarian attacks and state inaction, October

    [10] Kirkpatrick, D 2014, ‘Vow to Freedom of Religion Goes Unkept in Egypt’, New York Times, 25 April Saleh, S 2014, ‘Egypt’s Minya Province flashpoint for Muslim-Christian Violence’, Al Monitor, 25 April; Mikhail, A 2014, Church Shells and Empty Promises, 30 September, Atlantic Council

    [11] US Bureau of Diplomatic Security 2014, Egypt 2014 Crime and Safety Report, 18 March Human Rights Watch 2015, World Report 2015 – Egypt, 29 January

26. Salafi groups have become more prominent in Egypt since the revolution.[12]  Salafis generally believe that the Quran and the Prophet Mohammed’s practices (hadith) are the ultimate religious authority in Islam, rather than the subsequent commentaries produced by Islamic scholars.[13] Salafism seeks to restore Islamic faith and practice to that which existed at the time of the Prophet Mohammed and the early generations of his followers (known as Salaf, or forefathers)[14] and Salafis basically maintain that the only valid system of rule for Muslims is based on Sharia law.[15]

    [12] Bakr, A, 2012, ‘Egypt’s Salafists: A closer look’, Ahram Online, 15 October

    [13] Blanchard, CM 2008, The Islamic Traditions of Wahhabism and Salafiyya, CRS Report for Congress, 24 January

    [14] Brown, J 2011, Salafis and Sufis in Egypt, Carnegie Endowment for International Peace, 3 December

    [15] Ibid

27. Salafis have been accused of stirring anti-Christian sentiment in Egypt[16] and of being involved in sectarian incidents and attacks in which they have threatened, harassed and assaulted Christians.[17]  Salafi clerics have reportedly described Jews and Christians as infidels and declared that “an unbeliever has no mandate over a Muslim”.[18] However, Salafi leaders have also voiced strong opposition to religious violence.

    [16] Husain, E 2011, ‘Husain: The rise of intolerant Salafists in Egypt’, CNN, 16 November

    [17] Saleh, Y 2012, ‘In Egypt streets, Islamists throw weight around’, Reuters, 7 November ‘Women assault, cut hair of Christian woman on metro’ 2012, Egypt Independent, 11 November ‘Egypt Salafists ordered off Coptic church land: report’ 2012, Agence France‑Presse, 8 November, Google news

    [18] Ibid

28. Proselytising is not illegal in Egypt however the government does impose legal penalties on activities related to proselytising including “disrupting social cohesion.[19] DFAT reported in 2014 that “most Christians in Egypt do not attempt to proselytise. Any attempt to do so would likely be resisted – in rural and more conservative areas, perhaps violently”.[20]

    [19] US Department of State 2014, International Religious Freedom Report 2013 – Egypt

    [20] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January

29. The Tribunal accepts that the applicant’s beliefs are such that he will be compelled to talk about, promote and defend Christianity in Egypt and that he will be perceived to be a proselyting Christian. The Tribunal has had regard to the country information, above including the DFAT country reports which indicate that, in general, Coptic Christians are not subject to persecution in Egypt. However, the Tribunal considers that the applicant’s preparedness to proselytise gives rise to a particular profile which will attract harm primarily from conservative or extremist Muslims or Muslim groups in Egypt. The Tribunal accepts that the harm may amount to serious harm in the form of physical assault or other violence and that the chance of this harm arising is more than remote. The Tribunal is satisfied that the essential and significant reason for the harm is the applicant’s religion and his belief that Christians are entitled to greater rights in Egypt.

30. The Tribunal is satisfied that effective state protection will not be available to the applicant. DFAT has noted that the Egyptian state has the capacity and willingness to protect Copts and generally does so however response times and rates by security forces are not uniform and can be delayed.[21]  Other agencies (including Amnesty International, Human Rights Watch, the US Department of State and the US Commission on International Religious Freedom) have described the security forces as failing to protect Copts.[22] The Tribunal accepts that the applicant’s religious views and expression by way of proselytising are likely to make him a target for conservative and extremist Muslims and is satisfied that the Egyptian state will not be able to provide adequate protection from such violence.

    [21] Ibid

    [22] Human Rights Watch 2015, World Report 2015 – Egypt, 29 January; US Department of State 2014, Egypt 2013 International Religious Freedom Report; US Commission on International Religious Freedom 2014, Annual Report 2014 – Countries of Particular Concern: Egypt, 30 April; Amnesty International 2014, Egypt: Key Human Rights Concerns ahead of Presidential Elections, 23 May

1. The Tribunal is satisfied that the applicant faces a real chance of serious harm anywhere in Egypt and particularly outside the cities such as Cairo or Alexandria and that internal relocation is not a viable option for the applicant.

   Conclusion

2. 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

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

   Rea Hearn Mackinnon
   Member