1505197 (Refugee)

[2017] AATA 1145

1505197 (Refugee) [2017] AATA 1145 (21 June 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505197

COUNTRY OF REFERENCE:          Egypt

MEMBER:Shahyar Roushan

DATE OF DECISION:  21 June 2017

DATE CORRIGENDUM SIGNED:    24 July 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 30 is amended from “The Tribunal is not satisfied that the applicant would be able avoid the harm he fears by internally relocating within Egypt. The Tribunal is not satisfied that effective state protection against the harm the applicant fears is available to him if he were to return to [Country 1].” to read “The Tribunal is not satisfied that the applicant would be able to avoid the harm he fears by internally relocating within Egypt. The Tribunal is not satisfied that effective state protection against the harm the applicant fears is available to him if he were to return to Egypt.”

Shahyar Roushan
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505197

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Shahyar Roushan

DATE:21 June 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 21 June 2017 at 9:11am

CATCHWORDS

Refugee – Protection visa – Egypt – Religion – Islam – Strict Islamic family background – Belief in a pure form of Islam – Open rejection of the Sunnah, Hadith, official interpretation of Koran – Internal relocation unreasonable

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 499

Migration Regulations 1994, Schedule 2

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).

   Background, Claims and Evidence

2. The applicant, a [age] year old citizen of Egypt, arrived in Australia [in] October 2006. He applied for a protection visa [in] July 2014.

3. In his application for a protection visa, the applicant stated that he was born and resided in [the] Gharbia Governorate. In response to questions in relation to his reasons for claiming protection, he made the following claims:

4. He is from a very strict Islamic family that adheres closely to the Sunnah. He was educated in [Islamic] schools and he continued his higher education in [an Islamic] College.

5. His [relative] is a senior Sheik at a mosque and the applicant assisted him in preparing his Friday sermons. His [relative] decided on a specific topic for the sermon and the applicant had to research and put together the supporting Hadith. Through this work, he began to see ‘irregularities’ between Hadith and Sunnah. On a few occasions he spoke to his [relative] about this, but his [relative]’s responses made it clear that he should discontinue his thoughts. He encountered similar responses from others, including teachers at his college, and he became scared. Subsequently,he continued to practise Islam as practised in Egypt ‘without question’. In Australia, initially, he did the same, but soon he started to ‘relax’ the way he practised.

6. He returned to Egypt in 2012 and he experienced ‘a lot of difficulty’, including ‘a physical fight with family and friends’ due to the changes in his way of thinking.

7. In 2013, he was dating an Australian girl and they were both following the unfolding events in Egypt. His girlfriend was particularly ‘shocked’ by the Muslim Brotherhood’s treatment of non-Muslims and women. The applicant started to seriously think about Islam and looked into the Muslim Brotherhood ideas and their background. His research exposed him to more ‘irregularities’, but in Australia he was not scared to think and talk. Through his internet searches, he became drawn to a verse in the Koran, stating that God is the teacher of Islam through the Koran. There is no need for Sheiks or scholars, and that it is ‘incorrect’ to follow a person’s words.

8. He is now ‘a true Muslim’ and identifies ‘as Muslim only’. He is sometimes referred to as a Koranist, but Koranists have been defined in many different ways. He simply reads the Koran and asks God for ‘enlightenment’. In Australia, he has been discussing his views ‘with any person that still follows the Sunnah’.

9. The applicant attended an interview with the Department [in] November 2014. Where relevant, the applicant’s oral evidence to the Department is discussed below.

10. The delegate refused to grant the visa [in] March 2015 and the applicant applied for a review of the delegate’s decision. The applicant was represented in relation to the review by his registered migration agent.

11. The applicant appeared before the Tribunal on 16 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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).

14. 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.

15. 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’).

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.

    Analysis, Reasons and Findings

17. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

18. The applicant’s evidence to the Tribunal was consistent with his written and oral evidence to the Department. He provided an account of his religious beliefs and ideas, which the Tribunal found to be both detailed and persuasive.

19. The Tribunal accepts that the applicant was raised in a religiously conservative family and attended schools subsidised and overseen by [an Islamic organisation][1]. He subsequently attended [an Islamic] College to pursue his tertiary studies. The applicant told the Tribunal that he had entertained doubts in relation to aspects of Islamic beliefs prior to his departure from Egypt, but it was in Australia that he started to openly question the legitimacy of the Sunna (the actions and sayings of the Prophet Muhammad[2]). The Tribunal accepts that the applicant’s doubts and views were crystallised over a period of time in Australia.

    [1] [Information deleted].

    [2] The Islamic World: Past and Present, Oxford Islamic Studies Online,

20. The applicant stated at the hearing that he believes in a pure form of Islam enshrined in the Koran. He only believes in and follows the Koran. He stated that he did not acknowledge any of the Islamic sects, including Sunni and Shi'a Islam. He said rejects the Sunnah and the Hadith (the sayings of the Prophet Muhammad) and does not adhere to these sources. He added that he also rejects the official interpretation of the Koran, such as Ibn Kasir’s interpretation, and believes that the Shahada (the basic statement of faith, encapsulating the most important Muslim beliefs: ‘There is no God but Allah, and Muhammad is his messenger’[3]) should refer only to God and not to Prophet Mohammad. 

    [3] Shahadah: the statement of faith, BBC Religions,

21. Various sources confirm that rejecting the Sunnah is viewed by Muslims as a rejection of Islam[4], a rejection of the Koran and ‘expressing disbelief in Allah and His Messenger, and rejecting the consensus of the Muslims’[5].

    [4] See What is Sunnah, Kamali, MH, Shari'ah Law: An Introduction, One World Publications, 2011.

    [5] Islam Question and Answer, Ruling on one who rejects a saheeh hadith,

22. The country information before the Tribunal indicates that Egypt’s population is predominantly Sunni Muslim and religion is central to identity in Egypt.[6] In recent years, Egypt has witnessed a growth and spread of religious conservatism, culminating in the election of Mohammad Morsi, a Muslim Brotherhood leader, as the country’s President in 2012. In a March 2010 article, Baher Ibrahim wrote:

    Egyptians are isolated in their own society and running to religion as a result. They feel insecure about their future and mistrustful of everything and everyone around them. Many feel like second class citizens in their own country. In such an atmosphere, extremism can only grow.[7]

    [6] DFAT, Country Information Report, Egypt, 19 May 2017.

    [7] Baher Ibrahim, Egypt's chilling conservatism, The Guardian, 10 March 2010, >

    Samuel Tadros also noted:

    The tolerant Egyptian society of the 1920s and 1930s, which included a large Jewish community whose members reached ministerial positions, and could accept the publication of a book entitled Why Am I an Atheist?, has been systematically transformed into an intolerant society that violently attacks anything deemed as deviating from religiously accepted norms and traditions. This transformation was greatly aided by the alliance between the state and the religious establishment.[8]

    [8] Tadros, S, Religious Freedom in Egypt, The Heritage Foundation, 9 November 2010,

23. In April 2014, the New York Times reported:

    Having suppressed Mr. Morsi’s Islamist supporters, the new military-backed government has fallen back into patterns of sectarianism that have prevailed here for decades.

    Prosecutors continue to jail Coptic Christians, Shiite Muslims and atheists on charges of contempt of religion.[9]

    [9] Kirkpatrick, D, Vow of Freedom of Religion Goes Unkept in Egypt, New York Times,

24. More recently, Human Rights Without Frontiers observed:

    Charges of blasphemy and contempt of religion have been used in Egypt to criminalize the freedom of thought: the right to have doubts about some religious teachings, to express them publicly and to share them with others.[10]

    [10] Human Rights Without Frontiers, Freedom of Religion or Belief & Blasphemy Prisoners Database World Report 2016,

25. According to DFAT’s most recent Country Information Report in relation to Egypt:

    Blasphemy/ Defamation of Religion

    3.10     Article 98(f) of the Egyptian Criminal Code provides for prison sentences of up to five years and/or fines of up to EGP1000 ($AU145) for ‘exploiting and using religion in advocating and propagating extremist thoughts with the aim of instigating sedition and division or disdaining and contemplating any of the heavenly religions, or prejudicing national unity or social peace’. Articles 160 and 161 prohibit misdemeanours connected with religion, including disturbing religious ceremonies, violating the sanctity of religious buildings or cemeteries, printing adulterated versions of holy books, or imitating religious ceremonies for the purpose of ridicule.

    3.11     Courts of general jurisdiction hear defamation of religion cases. While the Misdemeanour Courts hear most cases, the Criminal Courts may have jurisdiction if the charge is serious enough to involve a potential term of imprisonment. It is common for cases to last over a year, and for proceedings to be postponed repeatedly. The Public Prosecution Office places charges, which may occur after a lawsuit is filed, a private citizen files a complaint, or the state itself files a case.

    3.12     Before the 2011 Egyptian Revolution, defamation of religion cases were rare. The number and frequency of charges rose considerably under the Morsi government, and this trend has continued under the Sisi government. In January 2015, Sisi issued a decree permitting the government to ban any foreign publications deemed offensive to religion. Under the Sisi government, Article 98(f) has been used against an increasingly wide range of groups across the country, including atheists, Christians (including converts from Islam), and artists (see also ‘Atheists’). The increased use of social media has reportedly been a contributing factor in the rise of such cases, as more people have had visibility of potentially controversial material.

    3.13     According to the US State Department, at least 20 individuals were prosecuted and eight individuals convicted in 2015 under Article 98(f). The exact numbers of those prosecuted in 2016 are unclear. However, some of the more high-profile recent arrests and prosecutions include: an Islamic scholar and TV host sentenced to a year’s imprisonment in December 2015 for questioning the sources of some of the Prophet Mohammed’s sayings; a prominent poet sentenced to three years’ imprisonment in Cairo in January 2016 for a Facebook post that criticised the ceremonial slaughter of sheep during a Muslim religious festival; the dismissal of the Minister for Justice in February 2016 for saying he would jail the Prophet Mohammed if he perpetrated a crime; and the sentencing of four Christian teenagers in Minya to between three and five years’ imprisonment in March 2016 for a video mocking an Islamic State execution that included a pre-beheading prayer.

    3.14     DFAT understands that those accused of blasphemy rarely have an adequate right of defence and are generally convicted. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases. In June 2016, two Members of Parliament reportedly launched a movement to repeal Article 98(f) on the grounds that it violated the Constitution’s articles on freedom of belief and did not fit within sharia.[11]

    [11] DFAT, n6, above.

26. The Tribunal was persuaded by the applicant’s evidence that he has been vocal about his beliefs and has openly spoken to other Muslims about his views of Islam. The applicant submitted letters from two friends and a colleague, describing how he had spoken to them about his particular views of Islam. In her letter [one] of the applicant’s co-workers, stated that she had befriended the applicant at their workplace about 14 months ago. She stated that the applicant is ‘social about his religion’ and that he had spoken to her about the ‘right Islam’ and the true message of the Koran.

27. At the hearing, the applicant cited verses from the Koran and told the Tribunal that he feels compelled to explain to people how he feels about the Koran and the Sunnah. The Tribunal is persuaded by the applicant’s evidence in relation to his beliefs. The Tribunal did not form the view that the applicant has adopted these views in Australia for the sole purpose of strengthening his refugee application. The Tribunal is prepared to accept that the applicant would be vocal in expressing his views regarding religion if he did not fear being harmed.

28. The Tribunal is satisfied that, if the applicant were to return to his home area in Egypt and express his religious views, there is a real chance that he would be subjected to threats to his life or liberty, significant harassment, serious physical harm or imprisonment at the hands of the members of the community, as well as the authorities. The Tribunal is satisfied that such treatment would amount to persecution within s.91R(1)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the persecution feared is the applicant’s religion.

29. The Tribunal is not satisfied that the applicant would be able avoid the harm he fears by internally relocating within Egypt. The Tribunal is not satisfied that effective state protection against the harm the applicant fears is available to him if he were to return to [Country 1].

30. The Tribunal, therefore, is satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

31. 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

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

    Shahyar Roushan
    Senior Member