1510238 (Refugee)

1510238 (Refugee) [2017] AATA 1528 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1510238
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Angela Cranston
DATE:28 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 28 August 2017 at 4:03pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Orthodox Christian – Particular social group – Women in Egypt – Gender based violence – Beatings, threats and harassment – Credibility

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Egypt, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] July 2015. In her application, the applicant stated as follows:

I am a citizen of Egypt and do not have a right to reside in any country.

I was born on [date] in [Town 1] which is located in Upper Egypt.

I am widowed and have [number of children]. [Details of children deleted]

I have [number] siblings. I have [siblings] living in Egypt, [Australia] and [Country 1].

I moved to [Town 2], Cairo in about 1966 from [Town 1] because my husband’s employment. My husband died in 1992 and I stayed in [Town 2] until January-February 2013 when I moved to [Town 3], Cairo.

I am Coptic Orthodox Christian faith and have been a member of the church all my life.

The country I fear returning to is Egypt.

The main reason why I am seeking protection from the Australian government is because of my religion as a Coptic Orthodox Christian.

I suffered a lot of psychological and physical harm in Egypt because of my religion as Coptic Orthodox Christian. While things were bad for Coptic Christians before the revolution harassed and insulted for not wearing the hijab or wearing a cross or similar religion symbols, the persecution against us intensified after the revolution.

With the rise of Islamist and Salafist extremists life became more and more difficult for non-Muslim, indeed even for Muslims to a lesser extent. Even after the fall of the Muslim Brotherhood and the removal of Morsi from power, there have been many reprisal attacks on Christians who are blamed for assisting the military from removing them from power.

Many incidents have happened to me because of my religion but I will focus on what happened just after the revolution until I came to Australia. I have many police reports of what happened.

I moved in with my son, [Son A] and his family between January and February 2013. I moved in with them because we discovered that his wife had [a medical condition]. I wanted to help [Son A], his wife and his children. [Son A] would have to take his wife to medical appointments so I would care for the children.

The first incident that occurred was [in] February 2013 at about 6pm when we were travelling to our church. It is only 20 minutes walking but we drove because I find it difficult to walk for 20 minutes. [Son A]’s wife [Ms A] stayed at home. We were getting into the car to go to church when a man in a white garment with a long beard held a long sword to my son’s neck. He stole from us and then said that we should convert to Islam and said do not think we will not revenge from you Christians. Another man appeared and hit the car and broke the glass. We were all so scared.

After this we reported the attack to the police at [Town 3]. They made a report but did not investigate the case or help us in any way.

The next incident occurred when I was leaving [Church 1] with my grandchildren [in] March 2013. A group of men with long beards in white robes followed us and was shouting out that we were atheists. Once we reached the apartment they prevented us from entering. They insulted us about our religion and then a woman started to beat me. The people had weapons and knives and we were petrified of being killed or of my grandchildren being kidnapped.

My neighbours were around and saw this happen. They are Muslim neighbours but we have had good relationship with them. That didn’t help though probably because they didn’t want to have problems with these Muslim extremists or Salafists either. There are many Salafists in the area where my son lives.

I was injured during this occasion so I went to [hospital] for treatment. The hospital refused to write a report. We then went to the police station to make a report to take legal action. A report was written however again nothing was done by the police.

Two days before the next incident [in] April 2013, I received a threatening telephone call telling me that I have been given a chance to convert to Islam and if I don’t I will be killed and my grandchildren will be abducted. Unfortunately, my son was not at the house as he was taking his wife for treatment. At about 6 pm that night there was a knock at the door. When I opened it the same men with long beards and white jilbabs attacked me and forced their way into the apartment.

The people started to break things in the apartment grabbed one of my grandchildren. They put a knife to my throat and told me again that they had given me a chance to convert. They told me we had to leave this place for good or we would be killed. I was told that this would be the last warning. I was so afraid after this happened. We went to the police station and reported the attack. I told them that I couldn’t remain in the apartment until these men were arrested. Again they did nothing to help us.

I left Egypt to visit my [Daughter A] in Australia after this incident. While all these incidents made me not want to go back I went back to care for my grandchildren as [Son A]’s wife had passed away. I told my son I would not leave him or my grandchildren on their own. I regret going back after further incidents happened against my son and children. They reported these incidents to the police.

While I was in Australia further incidents occurred to my son and his children. They continued to be attacked and their lives were threatened because of their religion.

After I returned to Egypt I again lived with my son and his family. It was a sad time after [Ms A] passed away.

[In] August 2013 I was again leaving [Church 1] with my grandchildren when the same men with long beard and white garments followed until we reached our home. They yelled at me to cover my head and that we are disbelievers.

These people prevented us from going upstairs and a veiled lady started to insult me and my grandsons, cursing my religion. She hit me and I shouted out for help however no one assisted probably because these people had weapons. They again threatened our lives and insulted our religion.

I reported this incident to the police again and advised that these men had attacked us before because of our religion. I suffered injuries as well during this attack including bruises to my right hand and face. Again after we reported this they failed to assist us and find the culprits.

All these attacks turned our lives upside down. It had happened so many times we realised we could not remain in Egypt even though it is our home and our life. Before this happened we had a good life, my son was a very successful businessman. We realised after the last occasion we had to leave as it wasn’t safe for my grandchildren or any of us because of these extremists. We felt like we were being continually watched.

If I was forced to return to Egypt I honestly do not believe that the Egyptian authorities will be able to protect me because on so many occasions we reported these crimes and they did nothing. I don’t think it is changed either since Morsi has been removed. Christians are still targeted.

I don’t believe I could relocate to another area in Egypt to remain safe. I am [years] old and have no more children left in Egypt. My daughter who is in Egypt is moving to the [Country 1] soon. I am widowed and frightened. I have no one to protect me if these attacks continue. Is not so easy to just pick up your life and move it otherwise I would have done this before. I feel like even though it is my home there is nowhere left that is safe for me.

This statement is just a summary of some of the things that have happened to me and my son and grandchildren in Egypt as Coptic Christians and the persecution we suffered. I’m willing to provide more details if I am offered an interview.

3. The applicant also provided a subsequent statement from her son as follows:

Discrepancy in police report dated [in] May 2013

I can confirm that this is due to a misunderstanding by the police officer who wrote down the report. I explained to the police officer that the men were looking for my mum and were asking for any valuable stuff like money or gold. So I had to give them my mother’s bracelet, ring and even clothes. So the police officer assumed that my mother was with me, although she was not. My mother was in Australia when this incident occurred.

Delay in seeking protection by [the applicant] by three months

I was initially granted [a temporary visa in City 1]. As we moved to Australia we found the distance between [City 1] and [City 2] much greater than we expected. Having no relatives in [City 1] as a single dad [with kids] and an elderly mum I desperately needed my siblings care and support. Therefore I decided to relocate either to [City 2] where [a sibling] lived or to [Country 2] where [another sibling] resided. Fortunately, I managed to obtain approval from SBDC to establish my business in [City 2] after a short while. At this stage, three months after her arrival in Australia, my mother applied for a protection visa.

The reason for my return to Egypt

As a condition of my visa, I had to transfer a specific amount of funds to Australia. Contrary to what I expected, I could not transfer money from my account in [Country 2] to Australia. Therefore I had to make a short two week trip to Egypt to sort out fund transfer. I had to take my kids with me as I could not put too much burden on my [sibling] who was already taking care of my mum. However I did not let my mum know that we were travelling back to Egypt as this would definitely worry her. So we told her that we were travelling to [City 1]. Therefore during your interview when she was asked where I was she responded that I was in Australia, not knowing that I was actually in Egypt.

4. The applicant appeared before the Tribunal on 27 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Son A,] (the applicant‘s son). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. The applicant stated she came to Australia in March 2013 for about six months to visit her daughter. She returned to Egypt when her son’s wife passed away and returned to Australia in August/September 2014.

7. The applicant stated she could not remember filling out any of the protection visa application forms. She then stated her son completed the forms and did not remember how the answers were recorded. She also stated her answers were not difficult and that her son knew everything about her. When asked how her statement was written, she stated she could not remember because she was over 70 and that past events had made her forget. When it was put to her that her story had been presented to the Department of Immigration which may mean that she remembered something, she stated the story was in her words but she could not remember. The Tribunal asked her who she told her story too, and she stated lots of people. When asked if someone had written her story down and presented it to the Department of Immigration she stated she did not know. When it was put to her that she had signed her written statement and asked how that was done, she stated she did not remember.

8. The applicant stated she had [children] in [Country 2], and [Country 3], Australia, and [Country 1]. She also stated her son had an Australian [temporary] visa. The Tribunal put to her that she seemed to know a lot about her son’s migration status but did not seem to know about her own visa application. She stated she could not go back to Egypt because all Christians were oppressed.

9. The applicant stated she last lived in [Town 3], Egypt. She stated that when she was in [Town 2], they knocked at her door and said haven’t you converted to Islam. When asked if that was the first time she had been approached she stated they told her when she was at the balcony to cover her head. When again asked if that was the first time she had problems, she stated the whole country knew about the problems. When again asked if the first time she had problems was when they knocked on her door and told her to convert, she stated there were other things not as serious as this. The Tribunal put to her that this was not in her written claims. She stated she could not remember what had been written.

The Tribunal asked if she had any more problems after she moved in with her son. She stated twice or three times they knocked at the door and said we will not leave you and you have to cover your head and we will take your children. When asked if there was anything else, she stated one time when they came they told her they would come back and threatened to take the elder girl.
The Tribunal asked if they approached her at any other time other than when they knocked on her apartment door. She stated sometimes when they saw her walking on the street they walked behind her and would attack anyone who had clothing like her.
The Tribunal asked what happened to her before she came to Australia in April 2013. The applicant stated they came and told her to convert and cover her head because she was the only Christian in the building.
The Tribunal clarified that they knocked on her son’s apartment and also followed her in the street and she agreed. The Tribunal asked if they approached her at any other time. She stated once they came at 6.00 am but the building security guard kept them away. She also stated they came three times to [Town 3]. They also approached her coming back from the church and approached her on the street three or four times. She stated one time she was leaving the church and they said haven’t we warned you to cover your head and she was scared. When asked what happened she said was crying, the children were crying and her son came and said don’t be scared. When asked how it was that her son came given she was on the street, she stated when she talked to him. When again asked what happened when she was surrounded and on the street, she stated she and the children went to the apartment and the security guard prevented them from entering.
When asked about the other times she was on the street she stated they were abusing her and throwing stones and hitting her and they were holding each other’s hands and blocking the street.
The Tribunal put to her that her written statement did not seem to be consistent with what she was currently stating. She stated maybe she previously remembered and now she could not. The Tribunal put to her that it might be because the events had not occurred. She disagreed.
The Tribunal put to her that in her statement she said the first incident that had happened to her was with her son and asked if she remembered that incident. She said she could not. The Tribunal put to her that in her statement she said that she was getting into the car with her son and a man with a long white garment and beard produced a sword. She said she could not remember. She said they wasted her mind and her unit was taken by the owner. She also stated all of her children were in a separate country.
The Tribunal asked if she had any siblings in Egypt. She stated all of her [siblings] were deceased but she had one in [Country 1]. She stated she had a daughter named [Daughter B] in Egypt who had an [Country 1] visa and was waiting for her son to finish his high school studies so that they would then go to [Country 1].
The Tribunal put to her that in her protection visa application she had also said that she had a [sibling] in Egypt, [Sibling A]. She stated she was in Upper Egypt. The Tribunal put to her that she also said she had another [sibling] in Egypt. She stated [Sibling B] had died 5/6 years ago.
The applicant stated she could not return to Egypt because her unit had been reclaimed by the owner and all of her children had left. The Tribunal put to her that her application seemed to suggest she could not go back because she was Christian. She agreed. The Tribunal put to her that the Department of Foreign Affairs and Trade said that most Egyptians especially those living in urban areas tended to get along with little regard to each other’s religious identity. The applicant stated they were oppressed in Upper Egypt. The Tribunal put to that she was in Cairo. She agreed. The Tribunal also put to her that the Egyptian authorities were generally committed to stopping communal violence. She stated how could that be given that last month they killed a Christian lady and a doctor who had been treating Muslims and Christians. The Tribunal also put to her that the majority of women regardless of their religion faced societal discrimination. She stated it only Christians who were oppressed. The Tribunal also put to her that the majority of women faced gender-based violence including sexual assault and domestic violence and asked if she wanted to comment. She stated there was no safety for someone like her to live by herself. She also stated she was frightened to go back to Egypt because they might kill her because she had not previously obeyed them. The Tribunal put to her that DFAT had said that it was unusual for churches to be bombed. She disagreed.
The Tribunal then spoke to the applicant’s son who stated he was on a [temporary] visa valid until 2018 and that if he fulfilled the visa conditions he would stay in Australia for good. He stated the applicant could not return to Egypt because her life was threatened because his Egyptian company had been accused of [encouraging] conversions from Islam to Christianity. He stated they harassed them at home and wanted to take money or his daughters because he was Coptic and they knew about [his business]. The Tribunal asked why none of this was in the applicant’s protection visa application. He said they attacked her when she was going to church and asked the security guards who she was. He also stated that because the guard was poor he would do things for money. He also stated it was in the police reports and the lawyer should have also said it. The Tribunal put to him that one of the police reports dated August 2013 stated that the applicant had said that August 2013 was the first time she saw the people who had approached her however the applicant’s statement had said that she was threatened many times before August 2013. He stated that after prayers they would come from the mosque and she had to be very careful when she talked to the police. He stated when this happened he tried to get all of his family out of the country and let the applicant take a two year [Country 2] visa. He also stated his sister was still in Egypt and safe because the guard at the building did not know their relationship. He stated she had an [Country 1] visa and when her son finished high school they would go to [Country 1]. He also stated that one of her children did not take the visa and if she went to [Country 1] she would leave one of her children and was trying to get a visa for him.

The Tribunal then spoke to the applicant’s advisor and stated that the applicant’s written statement may be inconsistent with her evidence at hearing which may lead the Tribunal to conclude that the alleged events had not occurred. The Tribunal also stated that there was a submission received by the Tribunal (on 26 July 2017) that had included a police report about an event on [date] which had not been referred to in the initial written statement.
The adviser stated that there was an attack on a Christian Church in Cairo in December 2016 and that the applicant could have been there. The Tribunal said DFAT said that high profile incidents in which churches are attacked were not a frequent occurrence. The agent stated the government was unable to stop attacks against Copts. He also stated the applicant was born in [year] and was [age] years old and may suffer from frequent forgetfulness.
The Tribunal put to him that the applicant’s statement suggested that the applicant had been approached many times and threatened with knives and the Tribunal may find it difficult to accept that she would forget that if it had in fact occurred. The Tribunal also said that it may find her oral evidence was extremely vague and may not accept that her claims were true. The Tribunal put to him that the applicant’s son was on a temporary visa and also needed to think about whether her daughter was going to [Country 1] since there was no evidence in support. The agent put to the Tribunal that the applicant’s son needed to operate a [business] in order to obtain permanent residence and that his wife had died and the applicant supported his [children].
The Tribunal said DFAT drew a distinction between the rural areas and Cairo. The Tribunal also put to him that the some of the submitted police reports appeared to be inconsistent with the applicant’s statement which may mean that the Tribunal would not give them weight.
The Tribunal then put to the applicant that it was having trouble accepting that her story was true because the written statement she gave to the Department of Immigration may not be consistent with her evidence at hearing. She stated she forgot. The Tribunal also put to her in needed to think about whether Cairo was as bad as she said it was for Coptic Christians. The Tribunal also put to her that her tourist visa application had stated she had [number siblings] in Egypt. She stated she only had [Sibling A] in Upper Egypt and the rest had passed away. She stated [another sibling] had died three years ago but [his/her] children were in Egypt.
We are seeking evidence in support of the following claims:
That your [other sibling] has died. Such evidence would be a
certified death certificate and translation.
That [Daughter B] and her family plan to immigrate to
[Country 1]. Such evidence would be a certified copy of any visa.
The Tribunal is ALSO seeking from [Daughter B] a copy of her current
passport and her permission to approach the [Country 1] Embassy in order to
clarify her current legal status in [Country 1].
The applicant responded providing a death certificate for [other sibling] and a copy of the passport and [Country 1] stamp visa for [Daughter B] stating that the visa had expired [in] July 2017. In addition, the applicant stated that regarding the permission from [Daughter B] to clarify her current legal status in [Country 1], given the current stressful situation in Egypt for [Daughter B] and her family, she was worried that this might have a negative impact on her application and she could not afford to take the risk.

Country Information

The latest DFAT Country Information Report Egypt dated 19 May 2017 states it replaces the previous DFAT Information Report on Egypt and the DFAT Thematic Report on Egyptian Copts, both published on 24 November 2015. It also states the following:

Communal Violence

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 on occasion adopt religious overtones and escalate into community level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. High profile incidents in which people are killed or churches attacked are not a frequent occurrence.

The majority of incidents of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya-which has a sizable (approximately 40%) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education-has been particularly notable in this regard. According to the National Council of Human Rights, around 10 incidents of communal violence occur each month in Minya.

A general breakdown in law and order nationwide following the 2011 revolution contributed to a significant growth in communal violence that peaked in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. On these occasions, Muslim brotherhood members and supporters attacked Christian targets across the country, including churches, schools and private property. Most, but not all of the incidents were marked by a slow police response, which may have been in part the result police and security personnel being otherwise engaged in protecting government institutions. Large-scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by brotherhood supporters.

A November 2014 government reports into the anti-Christian violence found that 29 people had died in communal-related killings, 52 churches had been completely razed, another 12 damaged and numerous Christian owned properties destroyed. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from 1 to 15 years. The US State Department reported in 2015 that, under a specific presidential order, the military had completed the rebuilding of around one third of the churches and other buildings destroyed in the 2013 violence.
Incidents of communal violence continued in 2016. Many of the incidents took place in Minya, including physical assaults of Christians and looting and destruction of Christian property. In May 2016, an elderly woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with the divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine. Around 154 Christian families fled the Northern Sinai town of al-Arish after seven Coptic Christians were reportedly killed by Islamic state affiliated militants in January/February 2017.

Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. However, lower-level church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims.
DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.

Christians

Christianity has deep roots in Egypt, arriving approximately six centuries before Islam. Although there are 12 officially recognised Christian denominations in Egypt, the overwhelming majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and a major city such as Cairo and Alexandria. Suburbs in Cairo, other cities and some villages are sometimes regarded or described as Christian areas, but few are exclusively Christian (or Muslim). The Christians are politically and socio-economically diverse: they hold varied professions, range from the very poor to the substantially rich, and have obtained a range of education levels.

Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely to leave their hair uncovered than are Muslim women. Christian women living in rural or conservative areas are more likely to cover their hair, but would not wear the Islamic hijab. Christians tend to have identifiable names. Though not a mandatory part of religious practice, Christians often have small crosses tattooed on the inside of their wrists or between their thumb and forefinger as a mark of their identity. Such tattoos are often obtained after Christians have visited monasteries or holy sites. It is unclear what percentage of the Christian community has such tattoos, roof the practice is increasing or decreasing.

As an overwhelmingly Sunni Muslim country, Egyptian laws and long-standing practices are generally designed to safeguard the majority (although the Constitution preserves the rights of all Egyptians). There are no legal barriers to prevent Christians from attaining visibility in public life, and a number of Christians have become prominent and influential in Egyptian politics and business. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be underrepresented in senior civil servant roles and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans and public universities. While anti discriminatory laws and legal protection exists, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.

Most Christians viewed the post-2011 revolution ascendancy of the Muslim brotherhood with considerable apprehension. They regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendancy of Sisi to the presidency. Christian religious authorities have consistently expressed appreciation for Sisi’s public calls for Egyptians to place national unity above religious differences. Sisi attended the main Coptic Christians evening mass in January 2015, the first time a serving Egyptian leader had done so, and attended again in January 2016. Sisi also called personally on Pope Tawadros to express his condolences following the murders of 21 Egyptian cops in Libya in February 2015. Following the December 2016 church bombing in Cairo, Sisi declared three days of national mourning, attended the funeral from victims and ordered the armed forces to repair quickly the damaged church. As noted in security situation, following the twin Palm Sunday bombings, Sisi declared a nationwide state of emergency. Christians generally remain strong supporters of Sisi although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt, including the threat of terrorism.

DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal and official in nature, and is likely to vary considerably according to geographic location. However some Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means. Christians are less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services and universities despite the lack of any official policy of discrimination against them.

Women

The latest DFAT Country Information Report Egypt dated 19 May 2017 states the following:

DFAT assesses that the majority of Egyptian women, regardless of religion and socio-economic level, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and workforce. DFAT assesses the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence.

RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Egypt and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Egypt, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Central to the applicant's case is her claim that she, a Widowed Coptic Christian from Cairo, fears Muslims because she has been repeatedly approached by them and told to convert from Christianity to Islam.
The applicant stated in her application that many incidents happened to her and that the first incident occurred [in] February 2013 when she and her son were getting into a car to go to church when a man in a white garment with a long beard held a sword to her son’s neck. She also stated that the next incident occurred when she and her grandchildren were leaving church and a group of men with long beards in white robes followed her and prevented them from entering the apartment and had weapons and knives. She also stated that after that, she received a threatening telephone call and then opened the door to the same men with long beards and white jilbabs who forced their way into the apartment, grabbed one of her grandchildren and put a knife to the applicant’s throat and that all these events happened before she came to Australia for the first time. After she returned from Australia, she was again followed from Church and threatened by people with weapons. However at hearing, the applicant was unable to discuss in detail, even when prompted any of these alleged incidents. She was also unable to discuss any of the details of the alleged first incident including where it had occurred and at no stage during her oral evidence did she suggest that she had been attacked or threatened with weapons or knives. When this was put to her at hearing she stated she could not remember. She also stated that she could not remember filling in any of her protection visa application forms or signing her own statement even though she acknowledged that her statement was in her own words.
The adviser submitted that the applicant was old and may suffer from frequent forgetfulness however no medical evidence was provided in support of that submission. The Tribunal also notes that at hearing, the applicant remembered unprompted the dates of her arrival in Australia, was most accurate when recounting details such as her son’s visa status as well as the rest of her children’s visa status throughout the world and was most articulate in stating that she could not return to Egypt because all of her children had left Egypt.
The Tribunal finds that if the applicant had a genuine memory problem, she may not have been able to provide details such as when she arrived in Australia or her children’s visa status or the elaborate details in her initial written statement which she said was in her own words.
The Tribunal's overall impression of the applicant’s evidence was that she was not recalling events that had actually happened. In reaching this conclusion, the Tribunal does not accept that the applicant would forget details such as whether weapons were used to threaten her if the incidents described in her written statement had in fact occurred.
After considering the applicant's claims and the totality of her evidence the Tribunal does not accept that the applicant is a credible witness.
The Tribunal does not accept that the applicant and her son were approached by a man in a white garment at their car, or that he held a sword to her son’s neck, or that the applicant and her grandchildren were followed when leaving [Church 1]. Neither does the Tribunal accept that the applicant received a threatening telephone call, nor that she opened the door to the same men with long beards and white jilbabs who then attacked her. The Tribunal does not accept that while she was in Australia, they continued to attack her son and his children, nor that when she returned to Egypt, she was again followed after leaving [Church 1] by the same men. Neither does the Tribunal accept that when she was in [Town 2], they knocked at her door asking why she had not yet converted or told her to cover her head. Neither does the Tribunal accept that when she lived with her son, they knocked at her door asking her to cover her head and threatened to take her grandchildren or that when she was walking they followed her or abused her and threw stones and blocked the street. In reaching these conclusions, the Tribunal has also considered her son’s evidence which was that they bribed the guard and the applicant was attacked because he had been accused of [encouraging] conversions from Islam to Christianity. While the applicant’s son has also alleged that the applicant was attacked, given the applicant's inability to remember that knives were allegedly used in any of these attacks, the Tribunal is not persuaded to give sufficient weight to her son’s evidence to accept that the alleged events have occurred. In reaching this conclusion, the Tribunal has also considered the police reports dated [date] which talks about someone wearing a white garment, bearded and holding a long sword, [date] which talks about a group of bearded men with weapons in their hands,[date] which talks about the same group wearing white jelbab (loose garments) with a knife, [date] which talks about one of the bearded persons putting a knife to the applicant’s throat, [date] which talks about a strange looking man holding a machine gun and [date]which talks about many people having weapons in their hands, such as knifes and penknife and finally, [date] which talks about a group of people putting on white garments and putting a knife to a grandchild’s neck. Given the applicant's inability to remember that knives were allegedly used in any of these alleged attacks, the Tribunal is not persuaded to give sufficient weight to these police reports to accept that the alleged events have occurred.
Because the Tribunal does not accept that these attacks have occurred, neither does the Tribunal accept the alleged motivation behind the attacks, that is the Tribunal does not accept that the applicant’s son was accused of [encouraging] conversions. In reaching this conclusion the Tribunal has considered the totality of the evidence and does not accept that the applicant or her son as credible.
At hearing, the applicant stated she could not return to Egypt because her unit had been reclaimed and all of her children had left Egypt, including [Daughter B] who has been living in guarded residence. When asked for further information, she stated that her son was in Australia on a non-permanent visa and her daughter was in [Country 1], but following the hearing, the Tribunal has only cited [Daughter B]’s expired [Country 1] visa and the applicant has failed to obtain permission for the Tribunal to approach the [Country 1] authorities to clarify [Daughter B]’s visa status. On the basis of the evidence before it, the Tribunal is not satisfied that [Daughter B] has [a Country 1] visa or that she is moving to [Country 1] soon. The Tribunal therefore does not accept that the applicant does not have family in Egypt, or that she will be forced to live by herself if she were to return.
The Tribunal accepts the applicant is a Coptic Christian. The Department of Foreign Affairs and Trade (DFAT) has noted in its most recent Thematic Report dated 19 May 2017 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 on occasion adopt religious overtones and escalate into community level violence, particularly in poorer rural and urban areas”. DFAT also notes that most communal incidents in Egypt take the form of vandalism and destruction of property and that high profile incidents in which people are killed or churches attacked are not a frequent occurrence. DFAT also notes that the Egyptian authorities are generally committed to preventing communal violence.
Having regard to the country information above and the fact that the applicant is a Coptic Christian from Cairo, the Tribunal does not accept that the applicant faces a real chance of serious harm because of her religion. That is because having regard to the country information above, the Tribunal finds that, while tensions and the potential for sectarian violence continue to exist, DFAT has assessed that urban areas on a day-to-day basis are not overtly affected by communal tensions, and the Egyptian authorities are generally committed to preventing communal violence. In reaching these conclusions, the Tribunal has also considered the country information the applicant has provided, however some of it dates back to 2013 which the Tribunal no longer considers current. Of the rest, most of it relates to Upper Egypt and not Cairo and none of the current reports, apart from a report about the Christian Church in Cairo in December 2016, deals with the situation in Cairo. Similarly, the Tribunal considers the adviser’s submission dated 26 July 2017, apart from the report about the Christian Church in Cairo in December 2016, does not deal with the situation in Cairo. While the adviser has stated that the applicant could have been in the Christian Church in Cairo in December 2016, DFAT has noted that high profile incidents in which people are killed or churches attacked are not a frequent occurrence and the Tribunal does not accept that as a church goer, the applicant faces a real chance of serious harm.
In assessing the applicant's fear of harm of being targeted as a Coptic woman and for being harassed in public for not wearing clothing like her (i.e not wearing hijab), the DFAT report dated 19 May 2017 which was also put to the applicant at hearing assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence.
The Tribunal accepts that there is widespread societal discrimination against all women in Egypt, including Coptic women. The DFAT report indicates that harassment is a frequent occurrence for women across the socio-economic spectrum. However, according to DFAT women also participate in all areas of Egyptian society, including government, business and civil society however societal cultural and religious barriers continue to place considerable limits on that participation.
The Tribunal accepts the DFAT report that states that women face a high risk of gender based violence, however this violence includes domestic violence which the applicant has never alleged. The Tribunal also accepts the DFAT report that indicates that women face societal discrimination and harassment is a frequent occurrence for women across the socio-economic spectrum. The Tribunal has considered whether there is a real chance the applicant will face gender-based violence from others. The Tribunal does not accept that the applicant has experienced violence in the past. Even though the applicant has stated that her own unit has been reclaimed, the Tribunal does not accept that the applicant does not have family in Egypt, or that she will be forced to live by herself if she were to return. The Tribunal also finds that the applicant’s circumstances, including the fact that she has family (her daughter) who is living in guarded residence is such that it does not accept there is a real chance of her being seriously harmed in this way. In reaching this conclusion, the Tribunal has also considered that the applicant was living with family in urban Cairo at an address that had a guard as opposed to a rural and poor area. While it has been suggested that the guard was bribed, the Tribunal does not accept that this has happened in the past. The Tribunal also finds that claims that guards could be bribed are speculative
While the Tribunal also accepts that, the applicant as a woman, is more vulnerable to societal discrimination and harassment, the Tribunal does not accept that the applicant’s circumstances means that she there is a real chance she will experience discrimination and harassment commensurate with serious harm. In reaching this conclusion, the Tribunal has taken into account that it does not accept that she will be forced to live alone and that before her departure from Egypt she was living with family in guarded residence in Cairo and that her daughter is also living in guarded residence. The Tribunal has also taken into account her and her family’s relatively well-off socio economic status that has allowed the applicant to travel to and from Australia and has allowed her and her family to live in guarded residence in Cairo.
Given the Tribunal's findings above, it is satisfied that the applicant does not face singularly or cumulatively a real chance of serious harm in Egypt for reasons of her being a Coptic Christian, a widowed Coptic Christian, and a woman.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
The Tribunal accepts the applicant is a widowed Coptic Christian. Having regard to the available country information and what the Tribunal has accepted of the applicant's claims and circumstances, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Egypt there is a real risk of significant harm. In reaching this conclusion, the Tribunal has taken into account that it does not accept that she will not be forced to live alone and that before her departure from Egypt she was living with family in guarded residence in Cairo and that her daughter also lives in guarded residence. The Tribunal has also taken into account her and her family’s relatively well-off socio economic status that has allowed her to travel to and from Australia and has allowed her and her family to live in guarded residence in Cairo. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her, or she will be subjected to torture; or will be subjected to cruel or inhuman treatment and punishment; or will be subjected to degrading treatment or punishment as required by s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.

Angela Cranston
Member

[2017] AATA 1528

28 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness