1504963 (Refugee)

1504963 (Refugee) [2017] AATA 979 (22 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504963
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Melissa McAdam
DATE:22 May 2017
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 22 May 2017 at 12:15pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Muslim convert to Christianity – Rejection by family – Threats of physical violence – Militant attacks on churches – Systematic and discretionary treatment of converts

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
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

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).
The applicant who claims to be a citizen of Egypt, applied for the visa [in] September 2014 and the delegate refused to grant the visa [in] March 2015.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born on [date] in [Town 1 in] Gharbeya in Egypt. He submitted a copy of his Egyptian passport issued in Egypt [in] 2013.
b.He is married. He separated from his wife [in] December 2013. She is residing in Egypt. He has a [child], born in [date], who resides in Egypt with his wife. His parents, [and other family members] are also in Egypt
c.He came to Australia [in] April 2007 on a Student visa. He has lived in Australia since this time, apart from a period of approximately six weeks in June and July 2013 when he returned to Egypt.
d.His [Relative 1] became a member of the Salafi Muslim Movement when he was [age] years old. At the time the applicant worked at a [business] in a Christian suburb and had many Christian friends. When the applicant asked his [Relative 1] about Christianity his [Relative 1] would become fanatical and say Christians are wrong and infidels.
e.When he came to Australia in 2007 he felt he was missing something. He lived with Muslim friends but felt lonely.
f.Towards the end of 2009 he became acquainted with an Egyptian Christian, [Mr A]. They became friends. [Mr A] talked to the applicant about the drawbacks of Islam. The applicant asked him about Christianity and Jesus. About one year later [Mr A] told the applicant he had been a Muslim at [university] but converted to Christianity in Australia. The applicant would sometimes go to church with [Mr A].
g.In 2013 the applicant met a person called [Mr B] who took care of the applicant. The applicant started attending meetings of Arab Christians at [Suburb 1], where he met [a] Priest, [Pastor A]. The applicant spoke with the priest who prayed for him. The priest asked the applicant to attend [Suburb 2] church and in 2014 the applicant started to attend it. The priest provided the applicant with books and other things. This continued until the applicant’s day of baptism.
h.When the applicant spoke with his family his problem began with his [Relative 1] who threatened to kill the applicant if he did not leave the Christian religion.
i.Any person from the applicant’s family or fanatic Muslim groups can kill the applicant because he has converted from Islam.
j.Christians face gross and wide-ranging human rights abuses in Egypt at the hands of the state, radical groups and local communities
k.He attached copies of the following documents to his application:
i.His current and expired Egyptian passports.
ii.His Secondary School certificate.
iii.His Statement of Attainment in English
iv.His Certificate in [subject]
v.His Birth Certificate
vi.His Marriage Certificate
vii.His Permission to Travel
viii.[Australian] Court documents
ix.Tax File Number advice
x.ABN Notification
xi.Translation of [social media] conversations between the applicant and his [Relative 1].
xii.SMS messages between the applicant and a Pastor
xiii.[Social media] conversations between the applicant and a Pastor
xiv.Baptism Certificate from [Church 1], dated [in] June 2014
xv.Parish newsletter containing photographs of the applicant’s baptism
Departmental Interview
The following is a summary of the claims and information provided by the applicant in his Departmental Interview:
a.There are no mistakes in his Protection visa application. A lawyer, [who] is a friend, helped him fill in the application.
b.He left Australia in October 2013 and returned to Australia in December 2013.
c.He came to Australia in 2007 to study [subject]. He stopped studying in December 2013. He lived too far from his classes and did not have the money to study.
d.His problems started in Egypt when his [Relative 1] found out by [social media] that he converted, a little before the applicant’s baptism in June 2014.
e.The applicant has been interested in Christianity since approximately 2009. He did not believe in the correctness of Islam. He started questioning Islam before he came to Australia, since he was [age range]. Because he discovered that religion is inherited from their parents, he wanted to know what is right, he wanted to compare the religions. His parents are Sunni Muslims.
f.Muslims told him that Christianity is wrong. But the applicant saw the opposite of this through his work at a [business] in a Christian neighbourhood. He expected the Christian people to be terrible but he befriended them and spoke with them and he could not find anything wrong with them. The [business] was in [Town 1] in the village where he was born. He found his Christian friends better than his Muslim friends. They did not steal and lie.
g.The Prophet Mohammed could not read or write so how could he write the Koran. There are many things which contradict each other in the Koran. When you compare the verses from Mecca and from Medina, they are different. The ones from Mecca are about tolerance while the ones from Medina are about violence.
h.The applicant has read the Christian bible. It is true some of the Koran is similar to some of the bible.
i.He met [Mr A] at [location]. The applicant was taking his friend to the airport. His friend offered they have a rest and meet [Mr A]. The applicant and [Mr A] developed a close friendship. [Mr A] has a Christian background. He spoke to the applicant about the problems in Islam.
j.[Mr A] gradually changed the applicant. They sat together and spoke of Christianity a lot. [Mr A] started by asking the applicant questions about Islam, such as how the Koran was collected. So the applicant researched this.
k.The applicant admired Jesus’ personality. When he started attending church and hearing about Jesus he felt very comfortable. He first attended church in [suburb] with [Mr A]. Then he met an Arab, [Mr B], and started attending the Christian meetings where he met [Pastor A]. He then went to the [Suburb 2] church.
l.The applicant studied how the bible was written and what it was about, and about Jesus. Jesus is the God of the weak, he came to lift people’s sins.
m.The people in Jesus’ life were the disciples. Jesus was born in Bethlehem. His mother is the Virgin Mary. He was born by the Lord’s word with the Holy Spirit. Islam almost agrees with his.
n.Joseph was Jesus’s father but not really his father, he was the fiancé of Mary and married her later. As soon as the King of the Jews had a vision about the coming of Christ he made an order to kill all the children.
o.The applicant does not know of the journey of Jesus to discover wisdom.
p.The applicant knows the story the devil trialling Jesus on the mountain. Jesus was fasting for forty days. The devil came to him to test him. He told Jesus that if he is God he can turn the rock into bread. Jesus replied that humans don’t live by just bread but from the mouth of God. The devil told him to throw himself from the top of the temple and the angels would save him. Jesus said don’t test the Lord your God.
q.The applicant knows of the miracle of the Jordan river. When people get into the river they are healed. When Jesus got to it he saw a person who could not walk and Jesus told him to and then he could. A Jew came to Jesus and said my son is dying. Based on his belief in Christ Jesus told him to go, his son is healed. Jesus also said he would tear down the temple and rebuild it in three days. He also healed sick people.
r.Jesus was on the mountain and the children came to him and they had just 3 fishes and bread and he prayed and there was enough food for 1,000 people.
s.A woman who had committed adultery was brought before Jesus for stoning. And Jesus said whoever is without sin can start to throw the first stone.
t.After this Jesus died and was crucified, but he rose again after three days.
u.The applicant fears his family and other Muslims in Egypt. The police will not help him because they do not have the time for such issues and the majority of them are Muslims who believe in Sharia law. A lot of people would like to convert to Christianity in Egypt but they fear they will not be protected.
v.The applicant’s [Relative 1] is now in [another country]. The applicant fears the whole family and other Muslims, not just his [Relative 1].
Delegate’s Decision
The Delegate found the applicants knowledge of Christianity was very poor. She found he was not a genuine convert to Christianity.
Information to the Tribunal
The applicant appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses for the applicant, [Mr A] and [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant’s mother and [sibling] are living in Egypt in [Town 1]. There are about [number] people in [Town 1]. About 30% of them are Christian.
b.The applicant’s wife is living in her family’s home. He is separated from his wife and the court has divorced them, but the papers are not complete yet. They do not communicate with each other because the applicant has changed his religion. Because of this she filed a lawsuit for divorce. She found out the applicant changed his religion while she was living with the applicant’s family in their house. When the applicant’s [Relative 1] found out he told all the family. This was almost three years ago.
c.The applicant has no contact with his [child].
d.The applicant’s problem with his wife started before he changed his religion. His father forced him to marry her according to tradition but the applicant didn’t want to marry her. She is his [cousin].
e.He doesn’t think she has told anyone the applicant has changed his religion. She told the court that the applicant had left her for more than six months which is one of the grounds for divorce in Egypt.
f.He first came to Australia in April 2007 and went back to Egypt in July 2013 for one month to get married. He returned to Australia and stayed 2-3 months then went back to Egypt in November 2013 for about 30 days hoping to separate from his wife. He created a power of attorney for his father in the Egypt Consulate to arrange the divorce.
g.The applicant changed his religion about four years ago. He was born a Sunni Muslim. He practiced Islam but not devoutly. He would pray five times a day. On Fridays he attended the mosque because he was expected to. He can recite the souras.
h.He became a Christian because he was marvelled by the personality of Christ. He believes in Jesus and that is why he follows Jesus. He believes Jesus is the son of God.
i.Religion is important to the applicant because he always searched for a God he could speak to, to go to God and tell him about how he feels. He believes in God. He complains to God when he is upset or gives thanks to him for everything and talks to him when he needs to know what path to take.
j.He did not find this in Islam. Religion should not encourage killing and slaughter or force people by rituals or by bashing and humiliation. That is what Islam teaches. There is a hadith about Prophet Mohammad saying teach them until they are seven and hit them until they are ten so they go and pray. There are so many verses in the Koran which order people to kill and to do the hadd punishment, like cutting hands for stealing. It is a fertile environment which encourages people to kill, hate and be fanatics.
k.He has read a little of the Old Testament and it has some similarities to the Jewish Torah. For example when the Jews said as in the Old Testament that an adulterer woman should be stoned, and Jesus said no she shouldn’t.
l.The applicant has Muslim friends in Australia. When he starts to get into discussion about religion usually they start to be fanatic so they agree not to get into the conversation and let everyone keep his own beliefs. Australia is a country of freedom so he can believe in what he wants. No one can tell him what to do. He also had a good Muslim friend in Egypt. He likes him as a person as generally in life he is a good person. The applicant dislikes Islam, not people for being Muslim.
m.In Australia he goes online to search the Internet about Christianity. He has his friend, [Mr A], to practice Christianity with. When he has time he goes to church and the monastery. Sometimes he gets together with other friends to talk about Christianity.
n.Three years ago he lived in [a town] and went to church. In [city] sometimes he goes to church in [suburb], the [name] church, and sometimes to [Church 1] in [Suburb 2], and sometimes to the Arabic church in [Suburb 1].
o.The last church he attended was a monastery in [suburb] with [Mr A]. He has been there two or three times. The last time was about three weeks prior to the hearing. He met [a priest] there. He gathered and prayed with other people there. It is an Orthodox monastery, with people of mostly Egyptian background.
p.Going to church is important to the applicant because Christ said if to meet with other Christians. When the applicant attends church to see and meet his friends it is a spiritual thing for him. Most of the time he is with [Mr A] who is his closest friend and [Mr A] gives him information and discussion about Christianity.
q.In Egypt he would not be able to practice Christianity because his family threatened to kill him. He will have no freedom to go to church and meet other Christians.
r.The applicant does not adhere to any particular denomination, he follows Christ. When he was baptised it was in an Evangelical church. But later he went to the Orthodox church and liked this more.
s.Initially there was only one church for 400 years then they separated into the Eastern and the Western churches. The Eastern churches are mostly in Egypt and Greece. One thousand years later they separated again and the Protestant Church emerged. From it came about 40 other denominations. The majority of churches are the same in relation to Christian beliefs but they just differ in how they explain Christianity.
t.He has a preference for the Orthodox service. This is because Protestant and Evangelical churches don’t love their priests, their understanding about the priest is less. They think the priest is a connection between them and Jesus. But in fact the priest is the more spiritual person and is at a higher level in purification. So the applicant can ask the priest to pray for him like a Father. To be witness as a Father to God. Also the Protestants don’t give high status to Saint Mary, whereas she should be given high status as the Orthodox do. The Christian Saints are like guardians and witness with him. So although he is not any particular denomination he prefers the Orthodox ways. If he was in Egypt he would want to belong to the Orthodox Church.
u.If he was in Egypt it would be considered permissible for any Muslims to shed his blood if they know he has converted to Christianity. He will be discriminated against as a Christian convert in Egypt. People will not employ him or give him housing because they will fear problems and threats from fanatics.
v.If someone in Egypt converts to Christianity he will go to the priest, but the priest cannot protect him. The government refers converts to the Sheikh to change their minds. It will become known that the person has changed his religion, and if he sets foot in a church he will be harmed. If he goes to church it will cause the church problems. Sometimes Islamic groups bomb churches in Egypt.
w.The Orthodox Church in Egypt will welcome the applicant as a Christian convert but they will do what they can to get him out of Egypt.
x.There was an incident in [Town 1] about 18 years ago with a person with mental illness. A rumour started that he had been baptised and there was big trouble. People became furious and wanted to confront those they thought had baptised the man. The elders had to intervene to assure people it was just a rumour and didn’t actually happen.
y.The teaching he received in his village was to hate and fear Christians. He was told if someone gets baptised by a priest they will lose their memory, so he was scared of baptism when he was young.

The applicant’s friend, [Mr A], provided the following information at the applicant’s hearing:
a.He also converted from Islam to Christianity. When he was Muslim he studied at [named university] in Cairo. He has studied a lot about Christianity.
b.In twenty years he has never been back to Egypt as he is scared he will be killed there.
c.People know he has a relationship with other Christian converts so he is well known in Egypt. He was well known in his area in Egypt because he was President of [two named organisations].
d.He lived in [named town] in Egypt.
e.When he converted to Christianity people were furious and demanded he return to Egypt. Some Muslims in Australia know he has dealings with converts and he is scared of them.
f.He was able to give the applicant a lot of information about Christianity and Islam.
g.Some people know he has dealt with the applicant and influenced the applicant to convert, so that adds to the threat he will be killed.
The applicant’s employer, [Mr C], provided the following information at the applicant’s hearing:
He does not know what religion the applicant is but he knows the applicant is religious because he has seen the applicant pray. When the applicant prayed he made a sign. The witness demonstrated the sign of the cross.
Country Information
DFAT’s Country Information Report, ‘Egypt’, published on 24 November 2015, states the following:
There is no statutory prohibition on conversion from Islam to other religions in Egypt. However, in practice, officials — including courts — frequently interpret sharia as prohibiting Muslims from converting to another religion and refuse to recognise such conversions legally. By contrast, converts to Islam will generally have their conversions recognised, and their identity cards changed accordingly without difficulty or delay.
Converts from Islam to other religions are not generally subject to officially sanctioned violence,
detention or surveillance. However, they encounter significant practical difficulties that in their scope and consequence amount to a high degree of official discrimination. Failure to amend a convert’s national identity card (and corresponding record) to recognise their new religious affiliation has ramifications on personal status issues, such as marriage, divorce, and the state’s view of the religious identity of any children (Egyptian children obtain a national identity card at age 16, with their religious identity generally matching that of their parents’—or their Muslim parent, in the case of a mixed marriage.) Christians designated as ‘Muslim’ on their identity cards (irrespective of whether they were born to Christian or Muslim families) will generally face difficulty being married in a Christian ceremony. Any children born to that person
will be considered Muslim by the state, and at age 16, will have ‘Muslim’ written on their identity card.
A 2011 court ruling allowed Christians who converted to Islam and then back to Christianity (generally in order to more easily access divorce) to amend their identity cards to reflect their chosen faith. However, Coptic community members have told DFAT that only a small number of such persons have been allowed to do so; according to these contacts, several thousand people are waiting to have their cards changed back.
In addition, converts from Islam face significant societal discrimination in the form of rejection and ostracism from their families or communities. Such discrimination tends to be worse in poorer or rural areas, where more conservative values are tightly held. The level of discrimination would likely increase if the convert undertakes activities, such as proselytisation, in relation to his or her conversion. There have been instances where converts from Islam have been accused of defamation of religion.
Articles 98(f), 160 and 161 of the Egyptian Criminal Code (Law 58–1937) prohibit citizens from
“ridiculing or insulting heavenly religions or inciting sectarian strife”. The law applies to all Egyptians and all recognised religions, but in practice disproportionately affects individuals accused of defaming Islam.
Defamation of religion cases are heard in Egypt’s courts of general jurisdiction. The Misdemeanour Courts hear the majority of these cases, as most are treated as misdemeanour charges and given fines. The Criminal Courts and Children’s Courts also have jurisdiction if the defamation charge is serious enough to potentially involve a term of imprisonment, or if the charge laid is against a minor.
Procedures for defamation cases can vary. The Prosecutor-General has the right to arrest individuals during investigations, and there have been cases where individuals have been arrested before appearing in court. It is common for cases to last over a year, and it is relatively common for proceedings to be postponed. A range of evidence can be adduced including witness statements, comments made in social media, and confessions.
Before 2011, few people were charged with defamation of religion and, according to local human rights contacts, those charged were usually public figures such as authors, publishers and journalists. However, since the January 2011 revolution, over 70 people have been charged and/or tried for defaming religion. The number of charges rose considerably during the Morsi Government, particularly against Christians. Since the July 2013 military intervention, the Sisi Government has continued to enforce (and even step up) measures to counter atheism, blasphemy and dissent. For example, President Sisi issued a decree in January 2015 that permits the government to ban any foreign publications it deems offensive to religion.
In the Egyptian judicial system, members of the public can make accusations about other people directly to authorities. DFAT assesses there has been a rise in accusations of defamation of religion since 2011, partly owing to the salience of religious issues in politics and public life, both during the Morsi government and afterwards.
Approximately 60 per cent of those accused of defamation of religion have been Muslim, while the majority of the remainder have been Christian. Most cases have arisen in Upper Egypt, followed by Cairo, and then Lower Egypt. Most Muslims accused of defaming religion are alleged to have defamed Islam. On 23 March 2015, an Egyptian appeals court upheld the conviction of a Muslim who burned a Bible outside the US Embassy – the first conviction for a Muslim charged with defaming Christianity.
Credible human rights sources have told DFAT that those accused of blasphemy rarely have an adequate right of defence, and are generally convicted. Penalties include fines and imprisonment ranging from six months to five years. On 30 May 2015, a television presenter received a five year sentence after using his program to criticise the religious arguments of Al-Azhar preachers. DFAT is not aware of any occasions where courts have ordered seizures of property, although sources have reported cases where families have had to leave their homes due to threats received as a result of defamation cases. DFAT is not aware of any past defamation convictions being quashed, though sentences have occasionally been reduced on appeal.
The UK Home Office, Country Policy and Information Note, ‘Egypt: Christians’, November 2016, contains the following:
According to the U.S Department of State, International Religious Freedom (IRF) Report 2015:
‘The government does not recognize conversion from Islam by citizens born Muslim to any other religion and imposes legal penalties on Muslim-born citizens who convert. While there is no legal ban on efforts to proselytize Muslims, the government uses the penal code’s prohibition of “denigrating religions” to prosecute those who proselytize publicly, often adopting an overly expansive interpretation of denigration, according to human rights groups. The constitution specifies Islam as the state religion and the principles of Sharia as the primary source of legislation.’
‘...While neither the Constitution or the civil or penal codes prohibit efforts to proselytize Muslims, according to a 2008 court ruling that tested the constitutional provision of religious freedom, conversion from Islam is apostasy and forbidden based on principles of Sharia..…The government generally tolerated foreign religious workers on the condition they did not undertake efforts to proselytize Muslims. Sources stated non-Muslim minorities and foreign religious workers generally refrained from proselytizing to avoid risking legal penalties and extra-legal repercussions from authorities and local Islamists.’
…
The U.S Department of State, International Religious Freedom Report 2014 has said that:
‘Islam, Christianity, or Judaism may be indicated in the religion field on national identity cards. Although religious conversion is not prohibited by law, the government does not recognize conversion from Islam in practice, and Muslim-born citizens who leave Islam for another religion may not change the religion field on their identity cards.’
The U.S Department of State, International Religious Freedom Report 2015 has said that:
‘Bishoy Armia Boulous, a convert from Islam to Christianity previously known as Mohamed Hegazy, was sentenced to five years in prison following his 2013 arrest for "illegally filming demonstrations to stir international public opinion against Egypt." The Appellate Court accepted Boulous’ appeal of his sentence on the illegal filming charge and reduced it to one year. During the appeal process, Boulous was released by order of the Appellate Court in July 2014 pending a decision on appeal. However, police immediately re-arrested Boulous on accusations of denigration of Islam in 2009...
‘According to a human rights advocate, Boulous’ re-arrest and continued detention were due to his conversion to Christianity. Boulous was previously known for suing the MOI in 2007 for not allowing him to change his legal religious identity from Muslim to Christian. The administrative court ruled in favour of the MOI. Authorities subsequently held Boulous in pre-trial detention illegally, having exceeded the maximum pretrial detention period of six months. The press carried a statement by Boulous’ lawyer that he had been physically beaten and verbally abused by prison officials because of his conversion to Christianity. The lawyer also told press that Boulous was denied a Bible and prescription glasses.’
The same source noted that:
‘The government changed the official religion of minors to Islam whenever at least one parent converted to Islam, regardless of whether the parent in question had custody, according to a religious freedom lawyer. In cases when the mother had converted, the government violated the law in so doing, as the law required the consent of the legal guardian of a minor before changing his or her records, and the law assigned guardianship to the father, according to the same lawyer. Some children who were legally identified as Muslims but who self-identified as Christians and lived in Christian homes were forced to attend religion classes for Muslim students, which entailed memorizing and reciting Islamic texts, among other coerced Islamic activities which violated their consciences, Christian representatives reported. They also stated that such children could not be admitted to a Christian orphanage. Additionally, children who were legally identified as Muslim but grew up in Christian homes had no recourse to choose with which religion to be legally identified when they reached the legal age.’
The USCIRF 2013 also noted this point:
‘Egyptian-born Muslims who have converted to Christianity cannot reflect their change of religious affiliation on identity documents, and in many cases, these converts also face intense social hostility. In past cases where converts have sued for the right to reflect their new religious affiliation on ID cards, Egyptian Courts have ruled that Muslims are forbidden from converting from Islam based on principles of Islamic law because conversion would constitute a disparagement of the official state religion and entice other Muslims to convert.’
…
The Immigration and Refugee Board of Canada in a response of 27 November 2013, … went on to say, citing other sources, that:
‘…a convert was not legally barred from receiving a card but that “if [the convert] tries to get an identification card he will be given one stating that he is a Moslem”. … The independent journalist stated that there have been cases in which persons who are attempting to change the religious status on their ID card or obtain passports "have been harassed by Security Services," but added that this was done in an "extra-legal manner" (Independent Journalist 10 Nov. 2013).
… An Associate Professor of political and international studies at Trinity Western University stated that "the difficulty of individuals seeking a religion change on their government-issued identity card is well-documented" and that "[t]his would extend also to having new identity documents issued by the government, including a passport".
The Associate Professor considered that the "difficulties would include extensive questioning, arbitrary arrest and detention, harassment and confiscation of identity documents required for the passport" and that "it would be the exceptional case in which a Muslim convert to Christianity would not have difficulties getting official documents."’(Associate Professor 8 November 2013)
According to the U.S Department of State, International Religious Freedom Report 2015:
‘On 18 November [2015], the Muslim uncles and cousins of a 26-year-old convert to Christianity killed her for conversion and marriage to a Christian man, according to press reports. Her father, father, who had tried to protect her from her uncles and cousins, reported to police they killed her, press reported. Prosecutors and police officers started an investigation. Following the killing, the press reported that senior security officials, the family of the victim, and her Christian husband’s family held a reconciliation session to avoid further sectarian violence in the village. The victim’s Muslim family reportedly demanded that the husband’s Christian family move out of the village permanently. The outcome was uncertain at the year’s end [2015].’
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Egyptian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Egypt. The Tribunal assesses the applicant’s claims against Egypt as his country of nationality and receiving country.
Credibility
The Tribunal found the applicant to be a credible witness.
The applicant demonstrated substantial knowledge about Christianity and how the Christian religion has developed over the centuries. He showed a reasonably sound knowledge of the bible and the life of Jesus.
The applicant’s evidence about his conversion to Christianity also showed a high level of personal depth. He provided an introspective analysis of why he adopted the Christian religion and how he believed it to be the religion for him in contrast to Islam.
The Tribunal found the applicant’s evidence regarding his lack of formal denomination, but preference for the Orthodox Christian church similarly thoughtful, understated and cogent.
The applicant gave detailed personalised evidence about his involvement in the Christian religion and church in Australia, and his practice as a Christian here.
In assessing the genuineness of the applicant's conversion claim the Tribunal gives weight to his continuing identification as a Christian, participation in the Christian church, and association with other Christians.
His claim of converting to Christianity was also well supported by the evidence of his witness, [Mr A], who the Tribunal found sincere and persuasive. Although the applicant’s employer, [Mr C], expressed no knowledge of the religion the applicant belonged to, he responded openly and spontaneously with the sign of the cross when asked to demonstrate how the applicant prayed at his workplace. The Tribunal accepts this as evidence the applicant prayed as a Christian at his workplace.
In view of the above the Tribunal finds that the applicant is a genuine convert to the Christian religion.
Fear of Harm in Egypt
Given the length of the applicant's participation in Christianity and the Christian church, the Tribunal accepts that the applicant's conversion to Christianity is known to his family and other interested parties in Egypt.
The country information indicates that although there are no statutory prohibitions on conversion from Islam to Christianity in Egypt, the government does not recognise conversions of Muslim-born citizens to other religions because it interprets Sharia law as forbidding Muslims from converting to another religion. DFAT have stated that accusations or perceptions of apostasy – the abandonment of Islam – are particularly sensitive in Egypt. The USCIRF has reported that in many cases, converts face 'intense social hostility'.
There are also reports which indicate that the government sometimes arrests, detains or harasses converts from Islam to Christianity.
In view of the increased sectarian volatility in Egypt since the recent revolution the Tribunal considers there would be sectors of the community who would react violently to the applicant's conversion from Islam. As the applicant's conversion is not recognised by the state and is likely to be received with hostility by the authorities the Tribunal considers it unlikely the state will offer any protection to the applicant.
In view of the information before it the Tribunal considers that the applicant's conversion would not be accepted by the state or sections of society, including potential Islamist militants. The Tribunal accepts the Applicant is at risk of physical violence and of arrest and detention by the state as a perceived apostate and someone who has brought Islam into disrepute.
The Tribunal considers that the applicant will not be able to freely practice his Christianity in the way he wishes to in Egypt, without fear of physical violence to himself and others. As a former Muslim both he and the churches in Egypt will be aware that his presence at a church will attract adverse attention to the church and endanger the priests and congregants there, as well as the applicant. The Tribunal notes reports[1] of recent bombings of Christian churches in Egypt by the Islamic State. The Tribunal considers that a church known to host a Muslim convert to Christianity would be perceived as a prime target for further such attacks.
[1] See e.g. The Guardian, 2017, ‘Egypt: Isis claims responsibility for Coptic church bombings’ , 10 April
On the basis of this information the Tribunal considers there are substantial grounds for the applicant’s fear he will be subjected to serious physical violence and unable to safely practice Christianity in Egypt. The Tribunal is therefore satisfied that there is a real chance of serious harm to the applicant in Egypt because of his conversion to Christianity.
The Tribunal finds that the harm the applicant is at risk of in Egypt includes a threat to his life and liberty, significant physical harassment, and significant physical ill-treatment. The Tribunal finds that such harm involves systematic and discretionary treatment in that it will be done selectively and intentionally to the applicant. The Tribunal finds that the essential and significant reason for the harm feared is the applicant's religion. The Tribunal therefore finds it amounts to persecution under s.91R of the Act.
Given the harm feared by the applicant involves both hostile acts and reception from the state, the Tribunal finds that he will not have access to state protection in Egypt. The Tribunal is also not satisfied that there is a relocation option available to the applicant in Egypt, as the threat of harm to him as a Christian convert exists throughout Egypt.

On the basis of the information before it, and for the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Egypt.
Section 36(3)
There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in any third country. The Tribunal accordingly finds he has no such right. He is therefore not excluded from Australia’s protection by s.36(3) of the Act.
CONCLUDING PARAGRAPH
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
Member

;
CNN, 2017, ‘Egypt Cabinet OKs state of emergency after Palm Sunday church bombings’, 11 April, ; Al Jazeera, 2017, ‘Egypt refers 48 to military court over church bombings’, 22 May,

[2017] AATA 979

22 May 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction