1505496 (Refugee)

[2016] AATA 4775

1505496 (Refugee) [2016] AATA 4775 (8 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505496

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Brendan Darcy

DATE:8 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 December 2016 at 2:47pm

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.

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Christian – Fabricated charges – Claimed vulnerabilities – Blasphemy and preaching Christianity – Kidnapping and extortion – Distress caused by the conduct of former migration agent – Relocation not practical

LEGISLATION
Migration Act 1958, ss 65, 36(2)(a)-(c), 91R(1), 91R(1)(b), 91R(1)(c), 91R(2), 499
Migration Regulations 1994

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan

(1996) 40 ALD 445

MIMA v Rajalingam

(1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor

(1994) 34 ALD 347

Kopalapillai v MIMA

(1998) 86 FCR 547

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of the Arab Republic of Egypt (Egypt), applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] April 2015.

3. For the purposes of this decision, the first named applicant, [name], will be referred to as the first applicant or the applicant; the second named applicant, [name], will be referred to as the second applicant; and the third named applicant, [name], as the third applicant.

4. The first named applicant appeared before the Tribunal on 21 November 2016 to give evidence and present arguments. The Tribunal did not receive oral evidence from the second and third named applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The Tribunal also received oral evidence from the first named applicant’s claimed spouse as a witness via teleconference.

5. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

6. 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

7. 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).

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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.

    Member of the same family unit

21. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships and dependents.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

22. The first applicant was born on [date] in [name], a suburb in Cairo in Egypt; she claims that she speaks, read and writes Arabic.

23. The first applicant claimed to be married to [Mr A], an Egytian national residing in greater Cairo, [in] January 2004.  

24. The second applicant was born on [date] and the third applicant was born on [date] and it is claimed that the first applicant is their biological mother. 

25. All the applicants claim to be citizens of the Arab Republic of Egypt (Egypt)

26. All the applicants claim to belong to be members of the Coptic Orthodox Church and describe themselves as Christians.

27. The first applicant claimed that the applicants resided in [name], a suburb of Cairo, the capital city of Egypt before departing for Australia.

28. The first applicant claimed that she visited Australia in 2009 while holding a [visa] to visit her [sibling].[1]  The first applicant applied a second time to visit her [sibling] in Austral in 2012 but was unsuccessful.

    [1] DIBP Folio 54

29. [In] May 2013, the applicants were granted [visas] to visit the first applicant’s [sibling]. The applicants arrived in Australia [in] August 2013.

30. Before arriving in Australia, the applicants visited [Country 1] in 2011; [Country 2] and [Country 3] in 2012 and to [Country 3] in 2013, according to submitted copies of the applicants’ passport.

31. [In] November 2013, the first applicant lodged class XA subclass 866 protection visas on behalf of the applicants. The second and third applicants were included as dependents of the first applicant. The applicants were granted associated bridging visas in association with these protection visa applications.

    Written Claims

32. As part of this review, there were two departmental files provided to the Tribunal: [numbers] with the submitted evidence provided to the department, including the 866 Forms for each of the applicants.

33. Below is a summary of the applicant’s written claims as they are presented in statement of claims which are on the departmental file ([number]): [2]

    [2] DIBP Folio 46-55

    ·The first applicant that she was born into family that included her parents, [and siblings]. However the parent’s marriage broke down in 1987 when the applicant had an affair with a Muslim woman; The first applicant claimed she was raised and remains a Coptic Christian; that she was educated at [a Christian] primary school; then went to a state high school before attending and graduating from [a] University in [course];

    ·The first applicant claimed that after the marriage breakdown she and her sibling with her mother lived with her maternal [relatives] for about two years. They were living in a slum area of Cairo.

    ·The first applicant claims her mother passed away in October 2000; that she worked as a [occupation] since 2001 and that she married in 2004 and moved to Giza with her husband’s family.

    ·The first applicant claimed her husband began his own [electronic] business with his [sibling] which was successful and expanded to [number] retail outlets and one wholesale warehouse. The first applicant travelled to [Country 1] with her husband and children in July 2011 to visit her husband’s [sibling].

    ·In September 2011, the first applicant ceased her [occupation] and started managing one of the shops for her husband’s business;

    ·The first applicant claimed she began to receive ‘very rude and using aggressive language’ abusive phone calls at home and that her husband tracked the phone calls down to a public pay phone, after which the abusive calls ceased;

    ·In December 2012, the first applicant claimed that she was approached by a man, [Mr B], at the shop. This same man identified himself as the [relative] of the applicant’s [family member]. It is further claimed he revealed to the applicant that her father had disappeared through a kidnapping. A few days later [Mr B] demanded financial support for her [family member]. The first applicant claimed she provided [amount] Egyptian pounds.

    ·The first applicant then complained that [Mr B] and his [relatives] visited asking to have a business meeting with her husband which took place a few days later;

    ·At the end of 2012, the first applicant claimed that a container of stock arrived at one of the ports but was stolen and that [number] shops had been burgled on two occasions in 2011 and 2012;

    ·The first applicant claimed that [Mr B] claimed responsibility for the loss of goods and the robberies and request to be supplied with products on consignment for his new shop. The first applicant claimed her husband declined to be part of this;

    ·[In] April 20123, the first applicant claimed she and her husband reported [Mr B]’s confession to the police;

    ·[In] June 2013, the first applicant claimed that she was summoned to the police station where she was advised the earlier complaint had been dismissed due to a lack of evidence. The police then informed her that there had been a counter-accusation had been lodged against her accusing her of selling [electronic equipment] with Christian contents pre-loaded onto them, for abducting her father; for blasphemy and preaching Christianity.

    ·The first applicant claimed that she denied all accusations to the authorities;

    ·In July 2013, the applicant and her two children travelled to [Country 3] and[city] with her husband during a business trip before arriving in Australia in August 2013;

    ·The first applicant claimed that her husband returned to Egypt to look after his business and subsequently discovered that the first applicant had been served with a summons to appear before a court [in] October 2013 for answer the charges against her;

    ·The first applicant claimed that her husband’s business had since become unviable and was forced to close down the shops and his now a [occupation] travelling between [Country 3] and the applicants’’ country of origin;

    ·The first applicant claimed her husband now resides with his [relative] or his parents for fear of further harm from [Mr B];

    ·The first applicant claimed that her husband has chosen not to avail himself of the option of seeking asylum outside Egypt due to family responsibilities;

    ·The first applicant claimed also that the third applicant was attending a private school in Egypt where he was forced to learn the Quran. The first applicant claimed he remained at that school because he was such a strong student academically;

    ·The first applicant claimed that she had befriended some Christian converts and assisted them financially if they were from underprivileged backgrounds; however she further claimed never to associated with them outside the church or sought to preach or proselytise Christianity to anyone; and

    ·The first applicant claims that she fears she will be arrested, prosecuted and imprisoned upon arrival based on the fabricated charges from 2013/

34. [In] December 2014, the first applicant attended a departmental interview about her claims.

35. [In] April 2015, the applicants were notified by the Department that they were unsuccessful in being granted protection visas. The delegate cited a number of inconsistencies between the first applicant’s written statement and what was said during the departmental interview.

36. [In] April 2015, the applicants applied to have that refusal decision reviewed by the Tribunal, differently constituted.

37. [In] November 2016, the applicant’s representative submitted a written legal submission with considerable country information on behalf of the applicants.

38. Inclusive to the legal submission was a letter from a consulting paediatrician noting that the third applicant had [medical conditions]. It also noted the first applicant appeared to have possible [similar medical conditions]. The letter is dated [in] October 2016.

39. Also submitted was a letter from a psychiatrist dated [in] September 2016 stating that the first applicant was interviewed on a number of occasions and that the first applicant had developed [certain symptoms].  Also attached is a letter from the same psychiatrist stating the first applicant was unable to provide evidence at a Tribunal hearing because the memories were so vivid and that providing evidence at a hearing would be traumatic for the first applicant.    

40. [In] November, the Tribunal received a number of additional documents with certified translations including:

    ·A statutory declaration from the first applicant that her previous agent had encouraged her to make false statements as part of her application for protection, including false statements during the departmental interview.

    ·A letter from the first applicant’s husband to [a priest] outlining a number of past incidents in considerable detail;[3]

    ·A police record date [in] June 2011 opening an investigation at 5.30 PM  into [number] persons stole a large sum of money ([amount]) at [Street 1.] The complainant is [name]. The report outlines a robbery that took place [in] May 2011 and that [name] was stabbed and punched. The report claims to document one of the accused helped arrange for the theft as the driver of the car but denied any other wrongdoing. Another accused denied any wrong doing at all.  The police station mention is [Station 1]. 

    ·A police report dated [in] June 2011 by the Giza Security Directorate at  [Station 1] stating the investigating office could not reach a decision who committed the crime and the matter was closed at 9.40PM; 

    ·An investigation record by the public prosecution dated [in] June 2011. This report contained transcripts of interrogated suspects. It also included a statement from the owner of [company]” whose name was [Mr A] who lives at [Street 1] (the first applicant’s husband). It is recorded that the first applicant’s husband took one of the accused to the police station because he had heard that the accused called someone about the money on the night of the incident and he expressed his outrage that the accused admitted to being involved with stealing but was released. The investigation report indicates the accused was further detained and the investigation was ongoing.

    ·A police record dated [in] June 2011 from [Station 1] with a certified translation.[4]  It states that [number] accused men  secret investigate but nothing was discovered

    [3] AAT Folio 85

    [4] AAT Folio 92-93

    Evidence at the Scheduled Hearing

1. The first applicant attended the scheduled hearing on 21 November 2016. The second and third applicants, who are minors, were not present at the hearing. The first applicant was assisted by the applicants’ representative (who was not their original representative at the time of application.).

2. The first applicant was also assisted by an interpreter in the Arabic (Egyptian) and English languages.

3. Submitted at the scheduled hearing was a translated letter by a Coptic priest from [name] stating that kidnapping children and other acts of harm and harassment is still prevalent in Egypt for the Tribunal’s consideration.[5]

   [5] AAT Folio 94-95

4. At the beginning of the hearing, the applicant’s representative stated that the first applicant wished to proceed with providing oral evidence. The Tribunal said that it had a letter from a medical professional that providing evidence at hearing would exacerbate her trauma.  The Tribunal offered to take limited evidence from the first applicant about the first applicant’s personal particulars and then to take evidence from the witness. The Tribunal also indicated to the first applicant it would write to her under s.424A for further evidence that may be relevant to its decision-making so as to not to exacerbate the first applicant’s psychiatric or psychological conditions.  The Tribunal provided a short break for the first applicant to consult her representative after which the first applicant indicated she preferred to proceed under the tribunal’s recommended approach.

5. The first applicant provided limited oral evidence about her background which include additional information about her family composition, her education, her family’s travel history, her children’s current mental health and her religion. Notably the first applicant claimed the applicants were living in an apartment in [Suburb 2] in suburban [city] without any extended family; that she travelled to [country] many years ago and that her family went to [Country 2] in 2012; that the applicants travelled to [city] to see the first applicant’s husband on a bridging visa earlier this year; and that she practices her Coptic Christian religion by attending mass regularly. 

   Oral Evidence from the Witness

6. During the scheduled hearing, the Tribunal was provided with oral evidence from [Mr A] as a witness visa a teleconference facility. The witness claimed to be the husband of the first applicant and the biological father to the first and second applicants. The witness also claimed to about [age], an Egyptian citizen and to be a Christian Coptic.

7. The witness was asked to explain the events in 2011 and to the reasons they were relevant to the Tribunal.  The applicant claimed that [in] January 2011 the first applicant and the witness returned home from a doctor’s appointment for the third applicant. They discovered on return that their house had been broken into, vandalised and robbed. The witness explained that the third applicant was very upset by this and it traumatised him.  The witness explained that gold, jewellery, material inherited things that both expensive and of sentimental value had been stolen.

8. The witness said he went to the police to make a formal complaint but the complaint was transferred by the police to the prosecutors. The witness claims that the police came to the residence and took finger prints and other evidence but found no evidence of the culprits and closed the file. The witness claimed that this occurred during the Egyptian revolution and the police were overwhelmed by the security situation within Cairo. There was also a mosque on the same street and the local police were in conflict with its members. The witness also said two other units in the same neighbourhood had been robbed and vandalised.

9. The witness claimed he went to [Country 3] after this event for business reasons including depositing money in a more secure financial facility than was available in Egypt which was considerably unstable. The witness explained the collecting debts from merchants with whom have his company had been wholesaling had become more difficult.

10. The witness also claimed that his [relative] who had been living in the lower floor of the apartment building had been collecting money on his company’s behalf but he was robbed and assaulted while in [Street 1] in Giza. The witness claimed they made a police report and it was dated [in] May 2011. The witness also claimed that police did not take the investigation seriously.

11. The witness also claimed there was an incident with a truck containing containers full of [electronic] equipment and accessories that the witness’ company were planning to distribute. The witness claimed that he had calls that the truck had been forced to stop its journey by armed men and that the container had been looted. The witness then claimed that army help move the container to [name] police station. The witness claimed that he had been targeted because he was obviously a successful businessman who had a warehouse and retail outlets.

12. The witness claimed that he discovered that another merchant in [suburb] had been selling his stolen merchandise. The applicant approached the merchant and offered to buy the merchandise. The merchant refused so the witness claimed he reported the stolen goods. The witness claimed they arrested a middleman who confessed they worked for ‘[Mr C]’. The policemen told the witness, it was claimed, they were unwilling to further investigate and recommended the witness bargain with [Mr C]. The witness claimed that the stolen goods were undercutting his business and he need to get the cheap goods off the market.  The witness approached [Mr C] directly who threatened the witness to abduct and kill his children if the witness did not withdraw his police complaint.  The witness went back to the police to further complain but the police informed the witness that the case was closed. The witness then claimed to have provided [Mr C] [amount] Egyptian pounds for the merchandise.

13. The witness claimed the police were scared of some criminals especially in the wake of the January 2011 revolution. The witness said that his family’s mental health was deteriorating and he took measures to install bars on windows at his residence.  The witness claimed that he transferred much of the family business to his [sibling] to focus on the international side of the family business.

14. The witness also claimed that he sent his wife and children to [Country 1] in 2011 to live with the witness’s [sibling]. However the witness said that his [relative] was very aggressive towards the third applicant whose trauma had been aggravated so they decided not to claim asylum in that country. The witness claimed that the applicants travelled to [Country 2] and [Country 3] in 2012 to provide the family with some respite.

15. The witness also claimed that in 2013 a local mosque in his residential street had requested money from the witness to renovate the mosque. The witness claimed the local Muslim leader made an implied threat towards his children when the Muslim claimed the witness’ children used the same local amenities by offering shelter or refuge at the mosque should they require it.

16. The witness also claimed that despite the change of government in 2013, he fears the applicants will be targeted for kidnappings and assaults as wealthy Christian families, like his, are targeted for extortion and because the police never properly investigate. The witness claims the Muslim Brotherhood continue to pose a threat to Christian Copts and that most Muslims in Egypt support the Brotherhood and extremist views towards Christian Egyptians. However the witness claimed that he had not been harmed or harassed since 2013 and that he no longer lives in the same street.

17. The Tribunal said it would write to the applicants to provide an opportunity for the first applicant to respond some question and country information. The Tribunal closed the hearing.

    s424A Letter and the First Applicant’s Response

18. On 22 November 2016, the Tribunal wrote to the applicants under the s.424A provisions of the Act to provide an opportunity, as far as is reasonably practicable, questions and information that may be relevant to the Tribunal’s decision making.  The s.424A letter was also issued in recognition that the first applicant appeared agitated and anxious at the beginning of the scheduled hearing on 21 November 2016 and it was agreed that this approach was more suitable given the first applicant’s apparent and claimed vulnerabilities. The applicants were asked to respond by 6 December 2016.

19. The questions included in the s424A letter in which the Tribunal was seeking responses were the following:

    ·     The applicants’ travel history which included traveling to [Country 1] in 2011 and travelling internationally in 2012 but not seeking asylum despite having the opportunities do so;

    ·     Providing false statements and whether the applicant has taken any steps to complain to the authorities about the applicants’ then migration agent’s unethical behaviour;

    ·     Country information about the security situation in Egypt;

    ·     Country information about the situation for Christians in Cairo;

    ·     Country information about the health system in Egypt; and

    ·     Any other information the applicants may find relevant to the applicants’ claims that they are owed Australia’s protection obligations. 

20. On 6 December the applicants’ representative provided additional information to support the applicants’ claims. Attached to the submission were responses to the Tribunal’s invitation as well the applicant’s representative response to some of those questions.

21. The statement written by the first applicant is written in Arabic and has a certified translation accompanying it.[6] With regards to the applicants’ travel histories, the first applicant reiterated the reasons they travelled to [Country 1] and restated that there was no family to support the applicants in [Country 1]. A number of documents were submitted to support this claim.[7]

    [6] AAT Folio 138-144

    [7] AAT Folio 121-136

22. The first applicant also claimed in the statement they did not stay in [Country 3] or [Country 2] as there were no churches there. With regards to the applicants’ domiciling in Australia without extended family support, the first applicant claimed that she stayed with her [sibling] in [Suburb 2] when they arrived but it was very small and there was pressure to find their own place. With regards to the applicants’ false statements, she reiterated the applicant’s claims the previous agent to have acted in an aggressive manner towards her and described him as a ‘swindler’. The first applicant cannot move to a house or to another suburb because of her psychological disorders; because extremists groups have taken over her home area of Giza and because if the applicants were to move to a wealthy area they will be targeted by extremists. 

23. On behalf of the applicants, the representative argued in a written submission the following regarding the Tribunal’s invitation to comment on country information:[8] that there was country information to indicate that the security situation had not improved in Egypt but ‘continues to grow worse’; that there is a severe lack of medical care in Egypt; that the third applicant reacts with feelings of [medical symptoms] when he hears Arabic television; that there is a stigma attached to people with mental health illnesses in Egypt; and that the population is poorly serviced by psychiatric and related health professionals and facilities.

    [8] AAT Folio 145-147

24. Attached to the submission is a copy of the complaint made to the Office of the Migration Agents Registration Authority.[9] Compliant details include that the previous migration agent caused distress to the complainant and he encouraged the complainant to make false statements.

    [9] AAT Folio 119 (MARA complaint reference no: [number])

25. Also attached certified translations of the first applicant’s marriage certificate, the first applicant’s personal identification card and the applicants’ birth certificates.[10]

    [10] AAT Folio 105-112

26. A number of supporting letters from various Coptic clerics based in Egypt were also submitted recommending to the Tribunal that it was not safe for the applicants to return to their country of origin with some examples of targeted killings of Copts.[11]

    [11] AAT 113-117

27. The Tribunal has also considered the country information in the attachment below and provided by the applicant’s representative addressing country information relied on by the delegate as well as information about kidnappings.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of Reference

28. All three applicants provided copies of the applicants’ passports which in on departmental file and the Tribunal’s file; those passports were issued by an authority in the Arab Republic of Egypt (Egypt).[12]

    [12] DIPB Folio 36-38;155-157

29. Based on these documents and without evidence to the contrary, the Tribunal finds that the applicants are citizens of the Arab Republic of Egypt, that Egypt is the applicants’ country of nationality for the purposes of the Refugees Convention, and that Egypt is their receiving country for the purposes of complementary protection.

    Membership of the same family unit

    Second and Third Applicants

30. At the time of application, the first applicant claims her legal husband under Egyptian law is [Mr A] and that they have never been separated or divorced and that he is not in Australia. The Tribunal accepts this to be the case.  At the time of application the second and third applicants were minors.  It is claimed the first applicant is the head of his household in the absence of her husband and that first applicant is the biological mother of the second and third applicants. 

31. It was claimed on behalf of the second and third applicants by the first applicant that the other applicants were financially dependent on the first applicant and that they were not in a spousal relationship at the time of application or at any time after the application was being assessed. At the hearing, the first applicant provided oral evidence that the all the applicants share the same residence in [Suburb 2] in the State of [name]. It was also claimed that the third applicant has a behavioural problems arising from past trauma experienced in Egypt.  

32. Under clause 1.12(1)(e) of the Migration Regulations, a person can be considered a member of the principal applicant's family unit if the person is a relative who does not have a spouse or de facto partner, is usually resident in the family head's household and is dependent on the family head. Clause 1.05A(2) defines a dependent, for the purposes of a Protection visa application, as a person who is wholly or substantially reliant on the other person for financial, psychological or physical support.

33. The Tribunal is satisfied that the second and third applicants are biologically related to the first applicant; shared the same household in the past in Egypt and Australia and are not in a spousal relationship on arrival to Australia. At the time of this decision, the Tribunal is satisfied the second and third applicants are minors and are wholly financial, physical or psychological reliant on the first applicant. Based on these accepted circumstances at the time of this decision is made, it finds that the second and third applicants satisfy the regulatory requirements in relation to dependency.  

34. For reasons above, the Tribunal finds that the second and the third applicants are a member of the same family unit as first applicant and does not satisfy clause 1.12(1)(e) of the Migration Regulations.

    Credibility

35. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

36. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

37. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

38. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

39. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    False Claims

40. The applicant has posed a dilemma or a difficulty in assessing the overall credibility of their claims as the first applicant admitted that many aspects of her claims have been embellished or fabricated.  On 18 November 2016, the applicants’ representative submitted a signed statutory declaration from the first applicant indicating that under the guidance of her previous migration gent. The allegations include that after providing documents in Arabic to her previous agent, she delegated him to have them translated; that the previous agent added issues to her claims that never occurred; that the agent encouraged the first applicant to sign documents and submit them despite her limited English language skills; that the previous migration agent told the applicant what to say to advance the applicant’s protection visa applicants despite many additional claims not being genuine; and that the previous agent told the first applicant she could not change her views as the applicant for protection had been submitted. The first applicant made the specific claim that the previous agent had then coerced her into providing further false claims while at the departmental interview. In the first applicant’s response to the s.424A, these late claims about false claims submitted to the department are reiterated.

41. In the first applicant’s original statement of claims, it was claimed that the first applicant was targeted for violence based on two reasons. Firstly, the first applicant’s estranged father and his new family were extorting money and a business arrangement from her and her husband’s company. In a related claim, the first applicant’s estranged [family member] who was Muslim is claimed to have looted a container ship for [electronic] equipment and sold equipment on the black market and that the police refused to investigate the matter when the [family member] demanded more stock be supplied to him. Second the same Muslim [family member] counterclaimed against the first applicant by falsely filing a police report that she had been selling [electronic equipment] with Christian contents pre-loaded onto them, for abducting her father, for blasphemy and for preaching Christianity. It was further claimed the applicants applied for protection as they had a well-founded fear of being arrested, prosecuted and imprison upon their return.

1. No documentary evidence was submitted despite claims of police records and summonses.

2. Based on the decision record, the Tribunal notes that first applicant compounded these misleading and false claims that the first applicant elaborated on these otherwise weak claims in a discrepant manner, inviting the delegate to make the finding that the evidence was not credible. 

3. The Tribunal notes that the first applicant has described this false and misleading evidence she presented to the Department as ‘embellishments’. However the Tribunal finds that these false claims were neither embellishments nor exaggerations but implausible and far-fetched fabrications.  Had the previous agent genuinely proffered these claims upon a vulnerable client as claimed by the first applicant in a statutory declaration, it would indicate to the Tribunal that the agent acted unethically and unprofessionally towards his clients and had breached the Code of Conduct for registered migration agents.

4. Based on the first applicant’s admission that these claims were false and based on the consistent testimony from the witness which is supported by credible copies of police records, the Tribunal finds there are no credible reasons at all for it to believe at all that the applicants face a real chance of serious harm or a real risk of significant harm for reasons of their religion or any other Convention reason that the applicants will be arrested, prosecuted or imprisoned or targeted for extortion, blackmail or kidnapping by any Muslims related to the applicants.

   Accepted Claims

5. While the Tribunal accepts that the first applicant made a number of false and misleading claims, the Tribunal accepts the following relative straightforward findings: 

   ·The first applicant was born in [year] as claimed in Cairo as claimed;

   ·The first applicant was brought up in as a Coptic Christian and mostly educated in the Coptic Christian educational system;

   ·The first applicant married a fellow Coptic Christian who is also belongs to a successful family business in importing, wholesaling and retailing [electronic] equipment and accessories;

   ·Since her marriage the first applicant mostly resided in [street] in Giza which is the governorate on the west bank of the Nile River opposite Cairo;

   ·The first applicant had been a [occupation] between 2001 and 2011;

   ·The applicants travelled to [Country 1] in 2011 but did not seek asylum in that country;

   ·The applicants travelled to [Country 2] and [Country 3] in 2012 but did not chose to visit a country that offered asylum comparable to Australian protection visas;

   ·On arrival in Australia, the applicants first moved lived with the first applicant’s [sibling] before residing in their own rental property.

6. The Tribunal accepts that the first applicant is an ongoing practising Coptic Christian and that she may be identified as Christian in Egypt by her dress and the wearing of a crucifix.  The Tribunal also accepts that the second and third applicants are being brought up as Coptic Christians and have identifiably Christian names.  

7. The Tribunal has placed considerable weight on the medical evidence provided by medical professional to indicate that the first applicant has a number of psychological symptoms for which she is being treated. Accordingly, the Tribunal accepts the first applicant is a psychiatrically vulnerable person for the reasons claimed and the Tribunal is satisfied that it taken care to conduct its hearing in a sensitive and appropriate manner.  Based on the corresponding medical evidence, the Tribunal also accept the third applicant has experience trauma arising from events in Egypt during critically formative years.

8. The Tribunal has considered the credibility of the written, oral and supporting documentary evidence of the witness. The Tribunal finds that there was overall consistency between the written claims that the witness had outlined in a letter to [priest][13] and his oral testimony provided at the scheduled hearing. The witness was detailed and articulate about the events of past harm he claimed to have experienced.  The Tribunal places considerable weight on this consistency in support of the applicants’ updated claims to have been credible. The Tribunal also notes that the witness written and oral testimony closely corresponded with that in the [number] related police and investigation reports submitted in 2011. The Tribunal places considerable weight on this consistency to support the claims of past harm as outlined by the witness’ written and oral testimony. With no information to the contrary, the Tribunal finds that the witness’ oral and written evidence and submitted documentary evidence in [number] related police and investigation reports from early June 2014 were consistent and mutually supportive. For these reasons and with no evidence to the contrary, the Tribunal has set aside its concerns regarding the applicants having provided earlier false claims at the time of applicant and it accepts that the applicants’ late claim of past harm as outlined by the witness to be credible.

   [13] AAT Folio 85

9. Accordingly the Tribunal accepts the following claims about past harm to be credible and plausible considering the general deterioration of law and order that emerged in the days and months after January 2011 revolution:

   ·In early 2011, the applicants experienced the robbery and vandalism of their home in [Street 1] in Giza (greater Cairo) and that a number of valuable items were stolen;

   ·The first and third applicants were badly shaken by this home robbery and that the police were asked to investigate the robbery and vandalism;

   ·In May 2011, the [relative] of first applicant’s husband was attacked and robbed when he was carrying a large sum of the family business’ money in [Street 1] as claimed and that the [relative] had been physically assaulted and stabbed as outlined in the police report;

   ·In June 2011, the first applicant’s husband and his [sibling], encouraged and contributed to formal complaint to the police to investigate the May 2011 robbery and that the accused were identified;

   ·In June 2011, the police had sufficient evidence for further investigations, even prosecution, but chose not to, as claimed by the first applicant’s husband;

   ·Based on the documentary evidence, the accused were Muslims who worked for the applicants’ family business and targeted the business because it was owned by successful Coptic Christian business people during a period of deteriorating security situation for Coptic Egyptians;

   ·The incident of past harm contributed to the first applicant’s increasing anxiety in remaining in Egypt;

   ·That in 2011 the first applicant’s husband had containers full of [electronic] equipment and accessories stolen by armed men who looted the containers and who shot at the authorities when confronted;

   ·Soon after the looting incident, the first applicant’s husband located a distributor who had been selling the looted items well below market rates and reported him to the police at [suburb];

   ·When the first applicant’s husband went to the police station at [suburb] the police encouraged the husband to talk to a criminal called [Mr C];

   ·When the first applicant’s husband met with [Mr  C] demanded him to drop the charges against the criminal, pays him [amount] EGP and the threatened to abduct and kill the children of the first applicant and her husband if not carried out;

   ·The first applicant’s husband then dropped the charges and paid the protection money;

   ·The first applicant’s husband fortified his house because to the deterioration in law and order in Egypt and this triggered anxiety among the applicants; and

   ·There have been no other serious incidents of harm since 2011. 

10. The Tribunal also accepts that the first applicant’s husband was asked by the local mosque in 2013 to donate money for the upkeep or maintenance of the local mosque and that he genuinely believed that a thinly veiled threat towards his children was made. However the Tribunal did not find the exchange as outlined by the witness as indicative of a threat and finds that the exchange was, on face value, as a non-threatening request for a donation.

11. Overall, the Tribunal accepts that the applicants and the first applicant’s husband had experienced different levels of past harm by Muslims.

    Travel History

12. The Tribunal has considered whether the delay in applying for asylum in other jurisdictions weakens their claims that the applicant had a genuine fear of persecution if they were to return to Egypt.   In 2011, the applicants travelled to [Country 1] where they resided with family members. The first applicant claimed that they considered applying for asylum but there was a lack of family support as the first applicant’s [family member] had a child with demanding and aggressive behavioural problems. Had the applicants had a demonstrable urgency in applying for protection based on their claims, the Tribunal would ordinarily and reasonably expected the applicant would have applied for asylum given [Country 1] is a populous, wealthy and vast country. In 2012, the applicant travelled to [Country 2] and [Country 3] but did not travel to a jurisdiction that offered asylum such as those in North America or Europe. The first applicant claimed the family was trying to give the children respite from the lawlessness of an Egypt led by Mohammad Morsi and the Muslim Brotherhood. In returning to Egypt for a second time and in not seeking asylum in 2012 further indicates to the Tribunal that the applicants did not have personally-held fear of persecution that was urgent or grave. The Tribunal does not accept the reasons for returning to Egypt claimed by the first applicant as the responses indicate there was lack of urgency in seeking safety given the seriousness of the applicants’ otherwise credible claims. 

13. However, in this case, the Tribunal has placed some weight on the available country information from independent source, including the Department of Foreign Affairs, that indicate that there was a prolonged period from January 2011 in which lawlessness and the targeting of Coptic Christians did not abate until the military invention led by al-Sisi to remove the Muslim Brotherhood in the middle of 2013. It has also placed some weight on the accepted circumstances and claims as outlined above, indicating that the first applicant and the witness were hoping for the situation to improve.  While the Tribunal finds that the applicants lacked the commensurate urgency in applying for protection visas or their equivalent offered in countries with similar humanitarian obligations, it has provided the applicants with the benefit of its doubt and accepts that the applicants held a genuine personally held fear of persecution based on the applicants’ religion as Coptic Christian, at the time of application.  

    Cumulative Findings for a Convention Reason

14. The Tribunal has considered if there are any actual or well-founded fears for that persecution based on their accepted circumstances, now and into the reasonably foreseeable future.  In this regard, the Tribunal has considered the available country information.

15. Despite the election of a new president in May 2014 and the crackdown on the Muslim Brotherhood, the available country information which is outlined in the attachment below does not indicate that the situation in relation to state protection for Coptic and other Christians has improved, especially in Cairo where the applicants have resided in the future and have available accommodation if they were to return.   Accordingly, the Tribunal finds that state protection is not available for the applicants as Coptic Christians.

16. In light of the available country information, the Tribunal is of the view that while official and societal discrimination of themselves may not constitute serious harm, the applicants as Coptic Christian residents of Cairo will not have a chance of serious harm as that is more than remote or insubstantial. Neither does the Tribunal accept that Muslims from the local mosque pose a real chance of serious harm towards the applicants if they were to return to their former residence in [Street 1] in Cairo. That is, the Tribunal does not accept the claim that the applicants as Coptic Christians in of themselves and based on the accepted circumstances that the applicants are Copts living in Cairo will face a real chance of serious harm, if they were returned to Cairo or anywhere within Egypt, now or into the foreseeable future. 

17. However, in the applicants’ case, it is claimed that the applicants belong to a wealthy family who would be targeted for the first applicant’s husband extortion through the use of or the threat of abduction, kidnapping and physical maltreatment during unlawful detainment.  It is also claimed that the cumulative effect of the applicants’ religion and ongoing experiences of trauma arising from past events will constituted a well-founded fear of persecution.  

18. The Tribunal has also taken into credible account that the first applicant’ husband has a profile among a criminal organisation operating in Cairo as a successful business person who is wealthy and conspicuous. The Tribunal accepts that a Muslim criminal in 2011 was able to intimidate the police out of investigation and to intimidate the witness into providing money to a member of a criminal organisation. The Tribunal accepts that the witness who is the first applicant’s husband, has maintained business interests in Egypt but has taken a number of measures to reduce or mitigate his chance or risk of serious harm. This includes frequent international travel to assist with the family business and the transference of responsibilities to the first applicant’s [family member]. Furthermore, the Tribunal also accepts the witness has encouraged his wife and [children] to seek refuge in Australia. This behaviour, cumulatively considered, indicates to the Tribunal that the witness has a genuine personally held fear of harm on behalf of the applicants, although he makes no claim that there has been a serious incident since the applicants’ departure from Egypt for Australia.

100.   The Tribunal is satisfied that cumulatively there is a real chance of serious harm if the applicants were to return to Giza, greater Cairo or anywhere throughout Egypt, now and in the reasonably foreseeable future. This is based on the applicants’ past experiences of trauma as a Coptic Christian and based on the past targeting of the head of the applicants’ household (the witness) by Muslims criminals. This cumulative finding has also considered that the first and third applicants’ accepted claims to be psychiatrically or psychologically traumatised and vulnerable. In this regard, the Tribunal finds that they will endure intensely-felt fears of being attacked, abducted or kidnapped that would amount to serious harm in the form of severe psychological torment. 

101.   According to DFAT, even during the al-Sisi regime, commercial disputes often start as small-scale neighbourhood or commercial disagreements and can take on a sectarian dimension, which occasionally results in community-level violence.’[14]  Given the unpredictability arising from sectarian disputes and the applicants’ family circumstances, the country information indicates that the chances of serious harm rises above remote or insubstantial levels. While the country reports indicate that while there has been some reduction in sectarian violence, the applicants, if returned to their home governorate of Giza or greater metropolitan Cairo or anywhere within Egypt, will face more than a remote, far-fetched or insubstantial chance of serious harm towards Coptic Christians, especially towards those belong to wealthy or professional families whose are perceived to have the resources to pay a ransom.  For these reasons, the Tribunal is of the view that there is a real chance of persecution on the grounds of the applicant's religion which includes the family’s past experiences of harm and based on the applicants as actual and perceived wealthy Coptic Christians, will be credibly targeted with serious harm, now and into the reasonably foreseeable future.

[14] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.15 <CIS27158>

102.   Taking all these factors into cumulative consideration supports the Tribunal’s conclusion that the applicants’ fear is well-founded. Accordingly, the Tribunal considers the applicant's cumulative circumstances are grounds for a well-founded fear of persecution for a Convention reason, namely the applicants’ religion as the essential and significant reason for that persecution.

103.   Therefore the Tribunal finds that the harm arising abductions, kidnappings, extortion and significant psychological torment, the applicants face on his return to Egypt amounts to serious harm on cumulative grounds and the applicants satisfy s.91(R(1) of the Act.

104.   The Tribunal notes that the Egyptian National Police are responsible for law enforcement nationwide and various sources including DFAT[15] indicate that police investigative skills remain poor and they suffer from shortfalls in training and equipment. The Tribunal acknowledges that that security situation has changed somewhat since 2013 and police in urban areas are more likely to provide more effective protection, DFAT nevertheless notes that the Egyptian police are a reflection of the Egyptian population and the increasingly conservative nature of the Egyptian society is mirrored in the police force particularly in rural areas. In areas outside major cities, the police live in the community they police and are subject to local pressure to make choices that are congruent with dominant social mores and chauvinisms. The United States Department of State noted in 2013 that there were credible reports that security forces failed to prevent or respond to societal violence against Coptic Christians and other religious minorities. The UK Home Office’s Country Information Guidance, Egypt: Christians noted that “in MS (paragraph 151(1)) the Upper Tribunal found that there was inadequate state protection for Coptic Christians.[16] 

[15] United States Department of State Country Reports on Human Rights Practices – Egypt, 27 February 2014; DFAT Country Report, Egypt, 28 January 2014

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

105.   In this regard, the Tribunal does not accept that it would be reasonable, in the sense of being practicable, for the applicants based on their accepted circumstances to relocate outside of their home city of greater Cairo.

106.   Although DFAT assesses that in urban areas the Egyptian state is generally able to provide protection to Copts and see this in the interests of the state to be responsive to Coptic grievances,[17] numerous other sources including DFAT itself refer to the failure of authorities to carry out investigations and prosecutions in cases of sectarian violence which has contributed to an air of relative impunity.[18] Despite the election of a new president in May 2014 and the crackdown on the Muslim Brotherhood, the evidence before the Tribunal does not indicate that the situation in relation to state protection for wealthy Coptic Christians targeted for extortion and other serious maltreatment has sufficiently changed. Accordingly, the Tribunal finds that state protection is not available for the applicant.

[17] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 29 January

[18] Human Rights Watch 2013, Egypt: Address recurring sectarian violence, 10 April accessed 15 May 2013 CX307093; Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March

107. 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).

Further Findings

108.   The Tribunal has placed considerable weight on the first applicant’s admission in a statutory declaration that her previous registered migration agent[19], as well as her consistent testimony during the Tribunal’s scheduled hearing. It also notes that the first applicant has taken measures to formally complain about the previous migration agent to the relevant authority. These actions by the first applicant strongly indicate to the Tribunal that the first applicant trusted the previous agent to uphold high ethical and professional standards in providing migration advice and assistance and that the applicants did not instruct the previous agent to provide vexatious claims or material to the Department or the Tribunal at the time of application.  Based on this credible information, the Tribunal considers the applicants’ previous migration agent intentionally breached aspects of the Migration Agents’ Code of Code which is part of Schedule 2 of the Migration Regulations 1998.

[19] AAT Folio 84

Conclusion

109. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a)

DECISION

110. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Brendan Darcy
Member

ATTACHMENT ONE

Country information

111.   The following information is included to provide a context for assessing the applicant's claims. Unless otherwise stated it is based on the Department of Foreign Affairs and Trade Country Information Report on Egypt and Thematic Report on Egyptian Copts, both issued on 24 November 2015.

Coptic Christians in Egypt and sectarian violence

112.   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, and are present in most areas of employment. There are prominent and influential Copts in politics, business and the arts. However, 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. There is also sporadic harassment of Christians in some areas, for example targeting women with uncovered hair. Discrimination and prejudice are more of a problem in poorer urban and rural area.

113.   The Egyptian constitution recognises Christianity, along with Islam and Judaism and grants Copts the same rights and freedoms as other Egyptians.

114.   However, Egypt is overwhelmingly a Sunni Muslim country and Egyptian laws and long-standing practices are generally designed to safeguard the majority. The two problems mentioned most frequently as impacting on Christian practice are restrictions on building or repairing churches and the operation of laws banning “ridiculing or insulting heavenly religions (Islam, Christianity and Judaism) or inciting sectarian strife”, commonly referred to as blasphemy law.

115.   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, although Cairo and Alexandria have also been affected.

116.   Egypt has experienced a number of significant changes in recent years. The Mubarak regime was overthrown in January 2011 and replaced with a military council which ruled until elections in June 2012, which were won by Mohammad Morsi of the Muslim Brotherhood. Morsi's government was removed by the military in July 2013 and replaced with a military dominated interim government which banned the Muslim Brotherhood in December 2013 and arrested between 22,000 and 29,000 Muslim Brotherhood supporters or suspected members, of whom some 7,000 remained in pre-trail detention in July 2014.[20] Elections held in May 2014 saw former defence Minister Abdul Fatah al-Sisi elected President

[20] Immigration Report pp 49-50 and Human Rights Watch Annual Report 2015, available at

117.   While there is no evidence of a significant increase in sectarian violence during the time Morsi was President, there was an increase in the number of ultra conservative Islamist groups such as Salafist parties and in the frequency of negative and sometimes inflammatory anti-Christian statements which in turn contributed to an increase of threats and attacks on Christian communities in some areas.[21]

[21] Issues Paper Egypt: Treatment of Coptic Christian & State Protection, Department of Immigration and Border Protection 3 March 2012 [Immigration Report] pp 54-55 and DFAT Thematic Report. 3.36

118.   Coptic Christians were greatly concerned about their future under an Islamist government and most welcomed the military intervention which removed Morsi. This contributed to the most serious outbreak of anti-Christian sectarian violence in recent times, which occurred in July and August 2013 when supporters of President Morsi attacked Christian churches, property and people. According to DFAT this violence was not orchestrated by the leadership of the Muslim Brotherhood, but was carried out by radical supporters of the group in retaliation for what they saw as the significant role Christians played in Morsi's removal.

119.   According to DFAT there has been a significant decrease in the scale and number of attacks against Copts under the Sisi administration. In a similar vein the US Committee for International Religious Freedom 2015, which covers 2014 and early 2015 stated that, while sporadic violence continued, the number and severity of violence incidents targeting Copts and their property had decreased significantly since the previous year.

120.   In their Thematic Report of November 2015 DFAT stated that it was their assessment that the day to day life for most Coptic Christians was not overtly affected by communal tensions adding that:

...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 (2.20).

121.   Similarly, after reviewing information from a range of sources the UK Border Agency concluded in its Country Information and Guidance Egypt: Christians report of 30 June 2014, 'although Christians do face personal and collective societal discrimination and repeated instances of sectarian violence, Christians in Egypt are not in general at risk of persecution or ill-treatment.’[22]

[22] Country Information and Guidance Egypt: Christians’, UK Border Agency, 30 June 2014, pp.7-8, available at

122.   However, the most recent United States International Religious Freedom Report[23] indicates that the Egyptian government failed to respond to or prevent sectarian violence in some cases, in particular outside of major cities according to human rights advocates and continued to hold “reconciliation sessions” to address incidents of sectarian violence which adopted findings favoring members of the majority Muslim community most of the time. “Reconciliation sessions” after sectarian attacks were used instead of prosecuting perpetrators and these sessions preclude recourse to the judicial system because in most cases the parties agreed to drop all formal charges and lawsuits and stipulated by the terms of the session. They failed to prosecute It was also reported that religious minorities continued to face significant threats of sectarian violence according to religious and human rights groups. There were also reports of lethal sectarian violence continuing over the year.

[23] United States, Bureau of Democracy, Human Rights and Labor, International Religious Freedom Report for 2015

123.   The November 2015 Thematic Report also indicates that Copts have access to state protection in Egypt. According to the report:

DFAT assesses that on a day-to-day basis in urban areas, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered to Copts by individual security officials.

Discrimination

124.   Discrimination on the basis of religion is prohibited under Egyptian law; however Copts continue to face official and societal discrimination. Amnesty International reports that it and other human rights organisations have documented a pattern of discrimination against Coptic Christians in Egypt that has been prevalent for ‘decades’.[24] Similarly, the European parliamentary Research Service states that Egypt’s religious minorities, including Copts, have suffered for decades from discrimination.[25]

[24] Amnesty International 2013, Egypt: Security forces abandon Coptic Christians during deadly attack in Luxor, 23 July Accessed 17 December 2013 CX316551; Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March Accessed 20 May 2013 CX307094

[25] European Parliamentary Research Service 2014, Egypt’s New Constitution and Religious Minorities’ Rights -  Prospect of Improvement?, 23 January, p.1 Accessed 11 February 2015 CIS2F827D92044

125.   Egypt has legislation that prohibits discrimination on the basis of religion; however, in practice these laws are rarely enforced.[26] In October 2011, the Supreme Council of the Armed forces issued a decree to amend provisions of the Egyptian Penal Code to explicitly prohibit discrimination on religious grounds.[27] The decree added Article 161(ii), which defines discrimination as ‘any action, or lack of action, that leads to discrimination between people or against a sect due to gender, origin, language, religion, or belief’.[28] It establishes a minimum and maximum fines (from EGP30,000 (approximately AUD 4,929)[29] to EGP50,000 (AUD 8,216)) and/or imprisonment, for perpetrators of acts of discrimination. The article adds more severe penalties for government officials who commit a discriminatory act,[30] with a minimum sentence of three months imprisonment and/or a minimum fine of EGP50,000 (AUD 8,216) and a maximum fine of EGP100,000 (AUD 16,438).[31] USDOS reports, however, that the amendment does not include any enforcement mechanisms.[32] The report notes that during 2013 ‘there were no indications in the media that the government enforced the 2011 amendments to the penal code that make discrimination a crime.’[33] Similarly, the January DFAT 2014 report on Copts states that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[34]

[26] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206; Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

[27] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

[28] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2 Accessed 17 December 2013

[29] Based on foreign exchanges rates of 4 February 2014 obtained from  US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206

[31] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2 Accessed 17 December 2013

[32] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

[33] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206

[34] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

126. The 2014 Constitution officially recognises Coptic Christianity and includes an anti‑discrimination clause. Article 53 of the Constitution prohibits discrimination on the basis of religion and belief.[35] Although the Constitution reaffirms Islam as the state religion, it recognises Christianity as one of the ‘heavenly religions’ and acknowledges the Coptic Orthodox Church as an official sect of Christianity.[36] However, Minority Rights Group International states that ‘it remains to be seen whether there will be a substantive legal and policy shift towards addressing the deep-seated discrimination Copts have faced in public office, education, political participation and other areas of civic life’.[37] Reporting on the likely effect of the Constitution, the EIPR states that ‘taking into account that lack of legal implementation and a weak police response are among the main causes of violence and discrimination of religious minorities in Egypt, it is unlikely that any improvement in the legal framework will bring changes to the situation on the ground.’[38]

[35] Constitution of the Arab Republic of Egypt 2014 – Unofficial Translation Accessed 11 February 2015 CIS2F827D92048

[36] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158; ‘What’s new in Egypt’s draft constitution’ 2013, BBC News, 3 December Accessed 5 December 2013 CX316553

[37] Minority Rights Group International 2013, World Directory of Minorities and Indigenous Peoples - Egypt: Copts, November, UNHCR Refworld Accessed 31 January 2014 CX317623

[38] European Parliamentary Research Service 2014, Egypt’s New Constitution and Religious Minorities’ Rights -  Prospect of Improvement?, 23 January, p.6 Accessed 11 February 2015 CIS2F827D92044

127.   Sources indicate that Copts continue to face official and societal discrimination. Several reports were located stating that despite initial optimism on the part of Copts, and public messages of support by President el-Sisi for the Coptic community, discrimination against Copts has continued since el-Sisi was elected.[39] Regarding societal discrimination, DFAT assesses that that ‘community prejudice’ against Copts is ‘pervasive’ but the likelihood of encountering societal discrimination is ‘heavily dependent on geographic and socio‑economic factors’, with discrimination ‘low‑level and infrequent’ in middle class urban areas but ‘higher’ in poor urban and rural areas.[40] According to DFAT, ‘most Copts in both urban and rural areas do not experience harassment and discrimination in their daily lives and live alongside Muslims across all social classes, genders and backgrounds’.[41] Nevertheless, DFAT states that since the January 2011 revolution, there have been reports of ‘harassment and intimidation of Christians and Muslims by more conservative Muslims’ and notes that it is aware of ‘anecdotal reports of Christian men and women being encouraged – or cajoled – to convert to Islam.’[42] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[43] According to Hassiba Hadj Sahraoui, Deputy Director of Amnesty International’s Middle East and North Africa division, ‘Coptic Christians across Egypt face discrimination in law and practice.’[44]

[39] Amin, S 2015, ‘What now for Egypt’s Christians?’, Ahram Online, 13 January Accessed 10 February 2015 CXBD6A0DE1298; Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714; Kingsley, P 2015, ‘Egyptian President Attends Coptic Christmas Eve Mass in Cairo’, The Guardian, 8 January Accessed 6 February 2015 CXBD6A0DE1385

[40] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

[41] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

[42] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.11 CIS27158

[43] UK Border Agency 2014, Country Information and Guidance Egypt: Christians, 30 June, p.7 OG180885B8

[44] Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March Accessed 20 May 2013 CX307094

128.   Reports published by the United States Department of State,[45] Carnegie Endowment,[46] Open Democracy[47] and Ahram Online[48] between 2015 and 2013 all state that Copts face official discrimination in Egypt, particularly with respect to appointments to senior positions within the public sector, public universities, security forces, judiciary and Egyptian government. In its January 2014 report on Copts in Egypt, DFAT provided a somewhat different assessment stating that ‘Copts experience low levels’ of official discrimination.[49] While DFAT reports that ‘there is a low level of discrimination against Copts in public sector employment’ it also notes that ‘the percentage of Copts in the Egyptian civil service is broadly representative of the religious breakdown of the population.’[50]  DFAT does report, however, that ‘societal discrimination can create a “glass ceiling” for promotions’ as ‘Copts tend to be under-represented in senior civil servant roles and in the upper ranks of the military and security services.’[51] According to DFAT ‘subtle favouritism and patronage could rule Copts out of senior positions.’[52]

[45] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, pp. 13-15 Accessed 29 July 2014 CIS29206

[46] Brownlee, J 2013, Violence Against Copts in Egypt, 14 November, Carnegie Endowment for International Peace Accessed 10 December 2013 CX316406

[47] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714

[48] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714 Ahram Online is a state-owned English-language news website published by Al-Ahram Establishment, Egypt’s largest news organisation. Al Ahram Establishment publishes Arabic-language daily Al-Ahram, which is the oldest and one of the most widely read daily newspapers in Egypt and the Arab world. See Ahram Online n.d., About AhramOnline Accessed 2 December 2013; BBC Monitoring 2013, Media Environment Guide: Egypt January 2013, 28 January, Open Source Center – Accessed 23 May 2013; Ezzat, D 2013, ‘Egyptian Christians struggle to overcome minority status’, Ahram Online, 27 September Accessed 3 October 2013 CX316469

[49] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

[50] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

[51] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

[52] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

Kidnappings

129.   In relation to kidnappings DFAT advise:

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.[53]

[53] Department of Foreign Affairs and Trade, DFAT Thematic Report – Egyptian Copts, 24 January 2015

130.   The Egyptian Union of Human Rights Organization (EUHRO)[54] 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.[55] The abovementioned January 2014 DFAT report, states that according to their contacts ‘there have been over 40 cases of kidnappings of Christians – mostly in Upper Egypt – since 14 August 2013.’[56] DFAT notes, however, that ‘it is not able to determine the number of Christians who were kidnapped during the SCAF period (or the Morsi Government).’[57] According to Christian Solidarity International,[58] between August 2013 and November 2013 ‘Christians leaders reported that more than 20 Christians had been abducted since August [2013], and over 100 since the 2011 revolution.’[59] According to the article, ‘a CSI survey of local Christian press reports shows more than 50 Christians have been abducted in Egypt since that report’ with Christian activists in Nag Hammadi reporting ‘as many as 42 kidnappings of Christians in their town alone since November 2013.’[60] In a November 2013 article Morning Star News[61] reported that although the exact number of kidnappings is difficult to estimate, ‘human rights activists say that the attacks are both common and widespread, affecting Christians in dozens of towns.’[62] According to the report, ‘almost every week, there are reports of Copts kidnapped and held for ransom.’[63]

[54] Hendawi, H 2013, ‘For Christians, disappointment and fears replace dreams of equality in post-Morsi Egypt’, Associated Press, 16 November, Montreal Gazette Accessed 9 December 2013 CX316323

[55] Nadler, A 2014, ‘Security forces treat Copts as badly as under Mubarak rule: EUHRO Head’, Daily News Egypt, 21 September Accessed 29 October 2014 CX1B9ECAB6489

[56] Department of Foreign Affairs and Trade 2014, Thematic Report: Egyptian Copts, 28 January, p.16 CIS27158

[57] Department of Foreign Affairs and Trade 2014, Thematic Report: Egyptian Copts, 28 January, p.16 CIS27158

[58] Christian Solidarity International (CSI) was founded in Switzerland in 1997 and is a Christian human rights organisation for religious liberty

[59] Christian Solidarity International 2014, Genocide Alert: The Arab Republic of Egypt, September Accessed 13 November 2014 CIS2F827D91545

[60] Christian Solidarity International 2014, Genocide Alert: The Arab Republic of Egypt, September Accessed 13 November 2014 CIS2F827D91545

[61] Morning Star News is a web-based news service focusing on persecution of Christians. It was founded by the editor of Christian News service Compass Direct in 2012. ‘After Retaking of Delga, Christians Terrorized in other Towns in Egypt’ 2013, Morning Star News, 25 November Accessed 20 May 2014 CX320944

[63] ‘After Retaking of Delga, Christians Terrorized in other Towns in Egypt’ 2013, Morning Star News, 25 November Accessed 20 May 2014 CX320944

131.   The motivation behind the kidnapping of Copts varies. For some it is to obtain a ransom; other kidnapped women and girls have been forced to convert to Islam and marry their abductors. The Carnegie Endowment, Christian Solidarity International (CSI), United States Department of State and DFAT have all reported that Christians are targeted for kidnap because of their perception of wealth and due to a lack of police protection and legal recourse.[64] For example, a November 2013 report by the Carnegie Endowment quotes an unidentified official from the Ministry of Interior as stating:

[64] Christian Solidarity International 2014, Genocide Alert: The Arab Republic of Egypt, September Accessed 13 November 2014 CIS2F827D91545; Brownlees, J 2013, Violence against Copts in Egypt, p.15 Accessed 10 December 2013 CX316406; US Department of State 2014, 2013 Report on International Religious Freedom – Egypt, 28 July, UNHCR Refworld Accessed 18 February 2015 CX325230 ; Department of Foreign Affairs and Trade 2014, Thematic Report: Egyptian Copts, 28 January, p.16 CIS27158

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.’[65]

[65] Brownlees, J 2013, Violence against Copts in Egypt, p.15 Accessed 10 December 2013 CX316406

132.   A November 2013 article by The Morning Star News quotes the Director of the Minya Branch of the Al-Kalema Human Rights Organization (AHRO)[66] as stating that the ransom demanded in nine separate kidnappings of Copts in Minya varied from between 100,000 ($17,069 AUD)[67] and 250,000 Egyptian Pounds ($42,677 AUD)[68] for each case. According to AHRO, these demands are ‘enormous for the average Egyptian, with the amounts based on Muslims’ widespread perception that Copts are wealthy.’[69]

[66] According to its website, the Al-Kalema Human Rights Organization (AHRO) is an independent and not-for-profit organisation ‘aimed at supporting and establishing the institutions of civil society.’ The AHRO is a member of the International Federation for Human Rights and has a consultive status with the Economic and Social Council of the United Nations

[67] Based on foreign exchanges rates of 4 February 2014 obtained from  Based on foreign exchanges rates of 4 February 2014 obtained from 

[69] ‘After Retaking of Delga, Christians Terrorized in other Towns in Egypt’ 2013, Morning Star News, 25 November Accessed 20 May 2014 CX320944

133.   The Tribunal also notes that the United States’ Department of State’s report on Religious Freedom for 2014 reported that the police and security officials reportedly failed to respond in cases of kidnapping and extortion of Christians in Upper Egypt and that Christians in Upper Egypt were targeted for kidnapping and extortion disproportionately as well as to a lesser degree in the Cairo area and the north. It also reported that the Coptic Orthodox Pope Tawdros identified kidnapping as among the most significant problems facing Christians.[70]

[70] United States Department of State’s Egypt 2014 International Religious Freedom Report

134.   The Tribunal has also considered the United States Commission on International Religious Freedom’s 2016 Annual Report and notes that although the Egyptian government has taken positive steps to address some religious freedom concerns the human rights conditions continue to deteriorate. It was reported that following the 2013 church attacks, the number of incidents of kidnapping for ransom and extortion of Christians rose dramatically. It goes on to say that while these incidents have decreased over the past year, they continue in parts of the country, particularly in Upper Egypt.[71]

[71]