1516519 (Refugee)

[2018] AATA 633

1516519 (Refugee) [2018] AATA 633 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516519

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Peter Vlahos

DATE:27 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 27 February 2018 at 6:26am

CATCHWORDS

Refugee – Protection Visa – Egypt – Religion – Christian – Particular social group – Egyptian Coptic Christian – Victim of kidnapping and extortion – Fear of harm by radical Islamic groups – Adverse interactions with radical Islamic groups – Applicants intervened in forced conversion – Pressure to follow sharia law – Availability of state protection – No effective state protection

LEGISLATION

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

CASES
Alamdar v MIMA [2001] FCA 1244
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Lama v MIMA (1999) 57 ALD 613
Lama v MIMA [1999] FCA 1620
MIEA v Respondent A and B (1995) 57 FCR 309
SZDNE v MIMIA [2004] FMCA 717
Wang v MIMA (2000) 105 FCR 548
Weheliye v MIMA [2001] FCA 1222
Yang v Carroll (1994) 852 F Supp 460

Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)

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

2. The applicants, who claim to be citizens of Egypt, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] November 2015.

3. The applicants appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother in law, [Mr A]. 

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicants were represented in relation to the review by their legal representative and 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 a spouse of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether Australia has protection obligations in respect of the applicant and her husband (hereinafter referred to as the ‘second applicant’). For the following reasons, the Tribunal has concluded that the decision under review should be should be remitted for reconsideration.

    Country of nationality and identity

23. Based on copies of the applicants’ passports, which were provided to the Department of Immigration & Border Protection (the ‘Department’)[1], the applicants’ oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Egypt and assessed their claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Act. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicants’ identities as they have claimed.

    [1] Department of Immigration and Border Protection [File] Folio [226] and [98]

24. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.[2]

    [2] AAT File No. 1516519 folio [13]

    Background

25. The primary applicant, [Ms B] is a [age] year old female born in [City 1], Egypt and the second applicant, [Mr C] is [age] and is the applicant’s husband. Both applicants travelled to Australia to visit the applicant’s [sibling], arriving in Australia [in] December 2013, as holders of a visitor [visa]. The applicants had previously travelled to Australia as holders of visitor [visas] in February 2010, remaining for [a number of] weeks. Both applicants travelled to [another country] for short periods of time in 2004 and 2011 to visit the second applicant’s [sibling]. Prior to the applicants’ overseas travels they both worked at different organisations in [a particular field] having both obtained qualification s in this field. The applicants lodged their application for Protection visa [in] January 2014, and were granted the associated Bridging visa E to allow them to remain lawfully in the community.   

26. The applicants provided the following documents to the Tribunal prior to the hearing:

    §Submission on behalf the applicants prepared by their legal representative and registered migration [agent] dated 14 July 2017.

    §Statutory Declaration of the second applicant dated 10 July 2017.

    §Letter [fax] from [a priest from a particular parish] dated [in] July 2017.

    §Submission on behalf of the applicants prepared by their legal representative and registered migration [agent] dated 17 August 2017.

    §Statutory declaration of the applicant dated 25 August 2017.

    The applicant’s claims for protection

27. The applicant’s written claims are to be found on the Department of Immigration and Border Protection (department) [File] from folios [46]-[51].

28. The applicants were also interviewed by the Department [in] March 2015.

29. In summary the applicants’ claim that they have been targeted for harm because of their involvement in preventing a forced conversion to Islam of Coptic Christian. This resulted in the applicants’ apartment being vandalised by unknown persons, their car set alight and destroyed, the [main] applicant (wife) being kidnapped and held for ransom and later, assaulted whilst leaving church.

30. The applicants’ made the following claims:

    §  Applicant and her husband were contacted by the parish priest at [Church 1] in [a district of Cairo] in May 2013, to assist in repaying a debt owed by [Mr D].

    §  The applicant claims that this debt was in relation to [goods] bought for his [business] and claims that the [seller] named [Mr E] asked [Mr D] to pay the debt, convert to Islam or face prison.

    §  Both applicants claim they were involved with the Christian community and were servants of [a particular religious official]. Applicant two’s father in law was also a [religious official] in the Christian community. 

    §  Applicant claims that following their payment of [Mr D]’s debt at court that [Mr E] approached them and swore that they would regret what they had done. Applicant one’s statement indicates that Muslims often attempted to convert ‘ordinary simple Christians’ to Islam.

    §  [Later in] 2013, both applicants were returning from a [particular activity]. On their return they discovered that their car which was parked in front of their building had been set alight.

    §  Applicant started screaming and applicant two covered her mouth, advising they check their apartment. They discovered their apartment had been broken into and their belonging stolen. Threats had also been [left] such as, ‘we are not going to leave you alone, you infidels, you the cross worshipers…’

    §  Applicant wanted to report this incident to the police however applicant two advised her that this would provoke further retribution, reasoning that the police would do little to protect them. Following this, the applicants attempted to find new accommodation away from the ‘terrorist groups’ threatening them.

    §  [Later in] 2013, the applicant hailed a taxi on her way to [work]. In the taxi was a veiled woman, they began talking and she [incapacitated the applicant in a particular way]. The applicant ‘fell unconscious instantly…’ When she awoke she found herself in an apartment surrounded by women wearing Niqab (face covered), they informed her that she had been kidnapped.

    §  Applicant was advised that her husband would be contacted. The women swore at her, spat on her face and ‘constantly’ beat her. She claimed that during this ordeal she was bleeding having suffered a [serious injury].

    §  The second applicant was contacted so he could hear her ‘screaming and crying’ and told that he would need to pay [a ransom amount] in [a particular timeframe] and not to contact the police.

    §  The kidnappers found out that the second applicant had reported her missing to the police and contacted him threatening to harm her. They also advised him that he had [less time] to get the money and that he would need to participate in a demonstration on [a particular date in] 2013 after evening prayers in support of [details of demonstration removed].

    §  Applicant’s husband and his father were able to collect the money and he took part in the demonstration as instructed. [A number of] men took the money from him and advised him to wait for applicant one’s return at their home.

    §  The applicant was returned to their home blindfolded [at a particular time] and was bleeding heavily from her [injuries]. Her written account states: ‘…I did not know where I was or how long I stayed with them…’

    §  Applicant’s husband contacted [a medical specialist] who advised them to go to hospital for [treatment] for her [injuries]. Following this incident the applicant made a statement to the prosecutor’s office, followed by an examination by the forensic medicine officer.

    §  Both applicants claim after this incident they resigned from their jobs, feeling that they were unsafe and would be targeted again by ‘thugs’. The applicant advised that one of the veiled women involved in her kidnapping had told her that she had not suffered enough and that it was only the beginning.

    §  [Afterwards in] 2013 both applicants were living with her father in law in [City 1]. [Later in] 2013, after leaving church they were stopped by a group called [Group 1]. The group verbally and physically abused them, making reference to the applicant being unveiled and her husband’s hair.

    §  Both applicants noticed that [Mr E] was with the group and they became fearful on remembering that he had advised them that he would never leave them alone. Both applicants fearing for their safety to [a particular location] from [a particular date in] 2013 until they travelled to Australia.

31. The Tribuanl asked the applicants whether they wished to add, vary or change their claims as had been submitted to the Department and to the Tribunal with their application to review and the Tribunal was told that they had no further claims.

    Applicant’s Evidence to the Tribunal at the hearing  

    Issue no.1 – The [Mr D]/[MR E] Dispute – forced conversion

32. The applicant told the Tribunal that both she and her husband ‘serve’ the Coptic Church of [Church 1]. Other members of the applicant’s family belong to this church community also. The applicant went on to tell the Tribunal that a priest who serves the Church spoke to her husband at the end of May 2013 with the aim of engaging both of them more actively within the church’s community so that they too can assist other Christians who were in trouble.

33. Such a Christian in need of help was a Coptic Christian, [Mr D], the Tribunal was told. He owed a considerable amount of money to another person (a Muslim) but could not pay his debt and was encountering pressures from his debtor. The applicant told the Tribunal that her family who are all Coptic Christians serves the poor and those in need. So both the applicant and her husband decided to help in this situation, and they were determined to do so without any hesitation.  

34. Following their joint resolve to assist this fellow Coptic Christian, the applicant and her husband both went and met [Mr D] at his home with the aim of understanding his needs and problem. At their meeting with him, they were told by [Mr D] that he had agreed to purchase ‘…some goods…’ from a man who was described to the Tribunal as [Mr E] (a Muslim). The goods were purchased by [Mr D] and paid for as agreed. Later, [Mr D] decided to purchase more goods from [Mr E] and for some reason (which was not made clear) [Mr D] committed himself to [Mr E] by his signature on a receipt. The Tribunal was told that after making some periodic re-payments to [Mr E] for goods purchased, [Mr E] demanded from [Mr D] the full payment of the [amount].

1. [Mr E], the Tribunal was told met with [Mr D] and advised him that his company no longer would supply goods to him on credit. What had been already provided to [Mr D] required immediate payment. [Mr D] expressed (the Tribunal was told) an inability to pay immediately such a large amount of money. The applicant told the Tribunal that [Mr E] told [Mr D] that ‘…you have to pay the [money] and convert to Islam as your faith…or the matter would be taken to court…’ [Mr D] was reassured by [Mr E] that if he agreed to his proposal (to convert to Islam) the debt would be excused and he would no longer be in any debt and in return for accommodating [Mr E]’s demands, [Mr E] would continue to assist [Mr D] and his business. [Mr D], the applicant told the Tribunal was told by the local Coptic priest of [Church 1] that he should not agree to anything and that the parish would support him.

2. The applicant went on to tell the Tribunal that her parish’s priest also instructed [Mr D] that ‘…we will refer you to someone who is a ‘Christian’ – a ‘Coptic Christian merchant’ from whom [Mr D] would receive whatever goods he required for his business.

3. Following these discussions between the parish priest and [Mr D], the parish priest (according to the applicant) encouraged the applicant and in particular, her husband to ‘…collect money…’ from the Church’s wider Coptic Christian community with the aim of helping [Mr D] out of his problems with [Mr E].

4. The applicant went on to tell the Tribunal when [Mr D] refused [Mr E]’s proposal to convert, he was taken to court for the non-payment of the money he owed [Mr E] for the goods he had supplied to him. The Tribunal was told that at the hearing the applicant’s husband (with the applicant) attended the court and told the court that [Mr D]’s debt would be settled by the applicant’s husband. Then, all parties proceeded to the court’s clerk where the applicant’s husband paid the [amount] which extinguished the [Mr E] debt.

5. The Tribunal was told that as the applicant, her husband and [Mr D] were leaving the court building, [Mr E] and [a number of] other men were waiting outside. The Tribunal was told that threats were hurled at all three them namely, – ‘….[I] swear by God ([Mr E]’s words according to the applicant) you will regret what you have done…’ [Mr E], the applicant also recalled told them that they would ‘…not only regret this…’ but that they will encounter ‘…terrible consequences…’ because of their actions and interference in his dealings with [Mr D]. Then [Mr E] left the scene with his companions.

6. The Tribunal asked the applicant why a dispute between [Mr E] and [Mr D] which was a commercial dispute become also a ‘religious’ one. In response the applicant informed the Tribunal that [Mr E] (as she understood) belonged to a group of ‘religious’ Muslims called [Group 1]. The applicant went on to explain that this group acted as they had done with [Mr D] with many other people who were Christian or Coptic Christians and the ‘poor’. [Mr D], the applicant explained had fallen into debt and [Mr E] realising his opportunities offered to help him but on [Mr E]’s terms. Hence, the problem faced by [Mr D].    

   Issue no.2 – Arson attack on the applicants’ motor vehicle

7. [In] 2013, the Tribunal was told the applicants’ car was set alight in front of their home in Cairo. According to the applicant on that day, they (applicant and her husband and others) had all decided to [undertake a particular activity] travelling in their neighbour’s vehicle. As a consequence of this, the applicant’s family motor vehicle was left parked outside their apartment as was its usual station.  Upon return to their apartment in the early evening of that same day the applicant discovered that the family’s car had been ‘torched…’

8. The applicant told that after witnessing this site it deeply distressed her and she feared the worse. Having surveyed the burnt-out vehicle the applicant and her husband went to their apartment which to their ‘horror…’  (according to the applicant) found it ‘broken into…’ burgled and ransacked with ‘threats’ directed at the applicant and her husband [left behind]. The applicant went on to tell the Tribunal that their neighbours tried to call the local fire brigade when they discovered the vehicle had been set alight but there was ‘…no response…’ or attendance by them. The applicant told the Tribunal that their neighbours could not provide any details of how this incident occurred. Not one individual saw anything unusual except to recall (according to the applicant) a ‘…loud noise…’ and the ‘…smell of smoke…’

9. The Tribunal asked the applicant – was a report made to the local police concerning this incident? The applicant told the Tribunal that ‘…no report was made…’ to the police. After discussing it with her husband, the two decided that (and in particular, it was her husband’s opinion) that what had happened to the family car and the breaking into of their apartment by unknown persons was ‘…not ordinary…’ and ‘…there were threats [left]…’ The conclusion arrived at by both was that this was a deliberate ‘…targeting…’ of both of them. The applicant went on to tell the Tribunal that ‘…[Mr E] [would] have done it…’ because ‘…only he threatened [us] outside the court…’

10. Thereafter the applicant and her husband felt insecure and feared their immediate surroundings and they (according to the applicant) were searching for other apartments to re-locate but their efforts were frustrated by their concerns about the future. Shortly after these incidents their efforts to relocate were put on hold because the applicant was kidnapped.

    Issue no.3 – The applicant’s abduction

11. The applicant told the Tribunal that [in] 2013 [she] was abducted by unknown persons and held for ransom. The applicant on that morning hailed a taxi to take her to work. In the taxi was a veiled female passenger. The applicant proceeded to tell the taxi driver her destination and began to have a discussion with the female passenger. [Details of abduction removed] and the applicant ‘…passed out…’ When the applicant awoke, she told the Tribunal she did not recognise the surroundings but saw [a number of] veiled women around her which were hurling verbal abuse at her. The applicant was also experiencing severe [pain] and feared the worse due to her situation.

12. Gaining her consciousness, the applicant asked the people around – where had she been taken. The response she received to her enquiry was to be told ‘…to shut up…’ Then, to her surprise, the applicant saw ‘…blood…’ on her person. She became greatly distressed and concerned and told her captors that ‘…[details of injury]…’ The response she received from her captors was to be told to ‘…shut up…’ and was also ‘…pushed around…’ The applicant then told the Tribunal that her fears intensified when she also noticed ‘…[a number of] men in the room…’ They came close to the applicant ‘…spat on her...’ [and] then ‘…they left…’ After this, the Tribunal was told that one of the ‘veiled women…’ warned the applicant not to make any further sounds and if she did not do ‘…it would make it (her situation) worse for her…’

13. As the applicant could recall for the Tribunal she was left ‘…there’ in that room for a considerable period of time alone. However, in the next room the applicant recalled that there were a lot of discussions going on which also seemed like a group of women ‘…fighting…’ The applicant recalled that she heard one woman who suggested her desire to continue to humiliate the applicant. Also, she heard another (a male voice) state that ‘…we have [caused her a serious injury]…’ Still another, stating in response, that the applicant ‘…was a Christian…’ and that ‘…they were not at fault…’ for what had happened to the applicant. Then, the Tribunal was told that [a number of] veiled women and two men entered the room where the applicant was being held and she (the applicant) asked them ‘…what were they going to do with her…’ The applicant was told that the group had the intention of talking to her husband on the telephone to organise her release provided they were paid an amount of money in return.

14. The applicant went on to tell the Tribunal that after this group had discussed the ransom demand with the applicant’s husband one of the male captors ‘…looked at …’ the applicant and the ‘pool of blood around…’ her and the applicant told the Tribunal ‘…he spat on her…’ and told her ‘…to go [and clean herself]…..’ The applicant also told the Tribunal that while [cleaning herself] she did not know and was not told by her captors that her husband had paid her captors money to secure her release. This information came to her knowledge when her husband told ‘…after her release…’ from captivity.

15. The applicant also recalled that during her captivity she was provided with ‘little food…’ She also (the applicant) asked one of her female captors ‘…why she had been kidnapped and held captive…’ The applicant was told that ‘…you and your husband are protecting Christians…’ and went on to warn her ‘…and you think [we] will allow you to do this ….and leave you alone…’ Further warnings were provided according to the applicant like ‘…[Mr E] will not leave you alone…’ and ‘…if you open your mouth and mention [Mr E]’s name to anyone ….you will be fixed up…’

16. Then, after a while (the applicant was not specific) the [veiled] women and [males] came into the room where the applicant was – placed a blind fold around her eyes and placed in a car. The applicant was not sure where she was being transported to and was not told by her captors. After (according to the applicant) [particular duration] of driving, the car stopped suddenly and the applicant was led out. The captors left the scene and though feeling confused the applicant realised that she had been let free ‘….[not far] from her home…’ Upon being reunited with her husband the applicant felt relieved but very anxious, fearful and tired. The Tribunal asked the applicant was this incident reported to the local police. The applicant told the Tribunal that he husband ‘…reported it to the police…’ but the local police chose to do ‘…nothing…’

17. The applicant explained to the Tribunal that her husband ‘…during her captivity…’ had gone to the local police for assistance because ‘…he did not know where I (the applicant) was…’ and was told by the police that he was to return to tell them if he had any news of the applicant’s possible whereabouts. If the applicant’s husband did not return to tell them any ‘…news…’ they would accuse him providing the police with ‘…misleading information…’

    Issue no.4 – Assault on the applicant on 25 October 2013

18. [In] 2013, the applicant told the Tribunal that she was ‘assaulted’ for refusing to dress in manner allowed by traditional Muslim custom. The assault was described by the applicant as having been committed upon her by men who were members of [Group 1]’). The incident was reported to the police and a report complied but nothing eventuated and the applicant and her husband fearing for the well-being and life fled and sought refuge in a [particular location], while both made their arrangements to seek ‘protection’ by coming to Australia.

    What has the applicant been doing while in Australia?

19. The applicant arrived in Australia in 2013 and since May 2014 has worked as [occupation] for [various companies] independent of her husband. There are no children. The applicant is [age]. The Tribunal was told by the applicant that both she and her husband feel very settled in Australia and felt anxiousness and fear at the thought of being ‘deported back to Egypt…’ at any time in the reasonably foreseeable future.

    What does the applicant fear if she and her husband were to return in the reasonably foreseeable future to Egypt?

20. The applicant expressed fear that if she was forced to return Egypt with her husband in the future, both would be ‘forced’ to ‘convert’ to Islam of face at some stage in the future persecution and ‘…death…’

21. The Tribunal discussed with the applicant the country information available and accessed by the Tribunal on the current state of affairs in Egypt concerning civil and religious society and noted that the present government was doing its best to constrain religious and sectarian divisions between the Christian Coptic minority and the Muslim majority. The Tribunal also noted that the present government had taken up a number of confidence building initiatives favouring the Christian Copts, for example, reinstatement of damaged churches and religious centres throughout Egypt.

22. The applicant acknowledged this state of affairs but told the Tribunal that regardless of these government actions in favour of the Christian Coptic minority – the Coptic Christian Church was not totally ‘free to speak out …’ against religious inspired violence committed against its followers throughout Egypt.

23. The applicant also told the Tribunal that the problem in Egypt was not between the Christian and Coptic Church and its followers and the government and state but by the slow but constant radicalisation of the majority Muslim population. The applicant reminded the Tribunal that both she and her husband had been targeted by a radical popular group of Muslims and this will be and remained a major concern for her and her husband. Indeed, it prevented the applicant as a Christian and member of the Coptic Church from feeling free to follow, be involved and believe openly in her religion.

24. The applicant emphasised her reality and experience in Egypt (before leaving for Australia) by telling the Tribunal that she and her husband tried to relocate to another part of Egypt. They both decided after the applicant’s kidnapping to move to [City 1] where the applicant’s father-in-law (who is a [religious official] of the Coptic Church) lived. While trying to adjust and to leave in peace there, the applicant experienced another attack on her person by popular Muslim radicals which took exception to western female appearance and her husband’s longer than usual hair.

25. The applicant believed that there was no place in Egypt that was safe and where radicals like ‘[Mr E]’ could not operate without being held to account for their threats, intimidation and attacks of Coptic Christians and Christians generally. The applicant told the Tribunal both she and her husband wanted ‘peace of mind’ and just wanted to live their lives without fear and with the freedom to practise their faith as they wanted.

    EVIDENCE TO THE TRIBUNAL BY SECOND APPLICANT

26. The second applicant [Mr C] told the Tribunal that he was born in Cairo, Egypt. He gained his entire primary, secondary and tertiary education while Egypt, gaining the qualifications of a [degree]. He worked in [a particular field] while in Egypt and while here in Australia, he has been working as [occupation] at [a particular company].

27. In regards to the [Mr D] issue the second applicant told the Tribunal that it occurred in [2013], when the local Parish priest spoke to him with the view of getting him to help a fellow Coptic Christian who had got himself into trouble. The priest also thought that the second applicant would be of assistance to the parish if help was required. The second applicant agreed to assist.

28. According to the second applicant, [Mr D] had a considerable debt owing to a person called [Mr E]. He went on to tell the Tribunal that [Mr E] had warned [Mr D] that if he did not pay the debt on his terms, [Mr E] would take the matter to the court. Indeed, part of [Mr E]’s plan as far as it concerned [Mr D]’s debt was to force him to convert to Islam using the possible settlement of the debt on good terms as an ‘…inducement…’ The Tribunal was told that the parish priest instructed the second applicant to go and see [Mr D] and to tell him not to concede to [Mr E]’s suggestions in return for his conversion to Islam.

29. After a few days, the parish priest and the second applicant visited [Mr D] and after a lengthy discussion by the priest about the significance of Jesus Christ, the priest advised [Mr D] not to deal in any way with [Mr E] and went on to tell that that there will be way found to assist him and to get him out of his present predicament. Thereafter, the second applicant was told (by the priest) to make every effort to collect the money owed by [Mr D] to [Mr E] which was [an amount] and then to attend court to settle the matter.

30. The second applicant did exactly as the parish priest told him to do and on [a particular date in] 2013, he and his wife attended the local court and settled the entire debt which was owed by [Mr D] to [Mr E].

31. Indeed, in the week before [Mr D]’s court trial, the Tribunal was told that he and his wife had [details of applicants removed]

32. At the court, the second applicant stood up before the Magistrate and informed him that it was his intention to settle the entire debt in the name of the defendant, [Mr D]. The clerk of the court provided the second applicant with a voucher and he proceeded to the bursary of the Court and paid the amount owing. The second applicants received a receipt left proceeded to leave the court building. Once outside, the second applicant was approached by an irate [Mr E] who warned that ‘…..[I] swear by God that you will regret what you have done…the punishment will be severe and bad…’

33. The second applicant was asked to explain why [Mr E] was angry with him even though he had received the money that he was owed by [Mr D]. The second applicant’s response was to tell the Tribunal that he had ‘found out…’ that [Mr E] to a ‘…organisation…’ which ‘…encouraged people to convert to Islam…’ It was his opinion, that [Mr E] did not want the money [Mr D] owed him but his real purpose was to use the debt to induce him to ‘…convert to Islam…’ The intervention of the second applicant the Tribunal was told – in paying the debt of [Mr D] interfered with [Mr E]’s plans and he fear that this would be case in other instances also where Coptic Christians were being targeted for conversion to Islam by his group. The second applicant went on to tell the Tribunal that the Coptic Church would support Copts and Christians in general when faced with a situation of forced conversions and that he as a ‘…son of a [religious official]…’ and he could not allow a person like [Mr E] to try and convert Christians. Moreover, the applicant was not intimidated with [Mr E]’s added threats he levelled at him that he would expose his anti-Islamic sentiments and work. Finally, the second applicant told the Tribunal that [Mr E] was a member of a Islamic organisation which wanted people to abide by sharia law at all times.

34. [Later in] 2013 the second applicant, his wife and some friends decided to [undertake a particular activity] and upon their return he noticed that his vehicle which had been parked outside his apartment had been torched. The second applicant asked neighbours whether they had seen anything which could make him understand why his car had been destroyed but [most said they] had not seen anything. He then, together with the applicant observed that their apartment had been broken into and vandalised and ‘…Islamic inspired threats’ [left behind]. The second applicant told the Tribunal that he could not think of anyone else but [Mr E] who would have been motivated to commit such actions against him. His opinion was further enhanced (he told the Tribunal) because [Mr E] had been very clear and direct in his threats outside the local court after [Mr D]’s hearing.  

35. The Tribunal asked the second applicant did he report this incident to the local police. The second applicant’s response was that he decided not to report these incidents to the local police because he feared further reprisals being committed on him and his wife by [Mr E] or the by the members of his group. The Tribunal also notes the second applicant’s comments in his statutory declaration dated [in] July 2017 in which he states the following concerning the reasons why he did not report these incidents to the local police:[3]

    “…I did not report these events to the police, because they concerned property damage only. Having regard to the ineffectiveness of the police, I did not think that a report of property crime would have been investigated in any event. We also did not have anything such as home or car insurance, so there was no economic need to make such a report. Furthermore, I thought that the feud between me and my wife on the one hand, and the people whose forced conversion we disputed on the other, would be regarded as settled. They had vandalised my home and torched my car, and so in my mind, they had gotten their ‘revenge’. As I said in the interview with the Department, for me to report to the police would only give these people a reason to seek another reprisal...”

    [3] AAT File no. 1516519

1. Moreover, the Tribunal was told that in the week the second applicant’s car was burnt and his apartment vandalised [other events occurred, which discouraged him from reporting to the police]. 

2. After [a period of time], the second applicant’s wife was kidnapped. The second applicant told the Tribunal that when he returned home after a day at work, he realised that his wife was not at home. He called her mobile but there was no response and then spoke with one his wife’s [relatives] to see whether he knew where she was and was told that he had not heard or seen her. The second applicant resolved that he would not make any report (as yet) to the local police until a period of 24 hours had lapsed which would also provide him with time to check the local hospitals. Then, the wife’s abductors called the second applicant and he spoke with his wife who confirmed that she had been abducted. The abductors told the applicant that no harm would come to his wife if he did not report the abduction to the police and that he provide a considerable sum of [money] to them prior to her release.

3. The Tribunal was told that having received the abductors demands he tried to raise the funds demanded by selling [personal items] and receiving some funds from his father but on this occasion the he also went to the police because it involved his wife but he doubted that the police would assist him. Then later in the afternoon, he received a call from the abductors instructing him not to return to the police and provided him with a [time] limit to organise the ransom money. Following this, the second applicant was again instructed to go to a particular [place] and to walk (with the money) in being in bag. The second applicant did as he was told. Then, when at the designated place, [a number of] people approached him and took the bag he was holding from [him]. The second applicant later found out that his wife had been released.

4. The Tribunal was told that when the second applicant was interviewed by the police, he told them the person behind this abduction was [Mr E] and his organisation. The police asked him what proof he had of [Mr E]’s involvement in his wife’s abduction. The second applicant told the Tribunal that when questioned by the police he felt that the interviewing officer was trying to defer the investigation of the abduction and to consider an investigation of him. The police investigation delivered no results.

5. Thereafter, the second applicant and his wife left their apartment to live with his parents at [City 1]. Both stayed there until the applicant was attacked by a group of individuals while leaving a church service for not wearing clothes as required by sharia law. The Tribunal was told that these individuals were from the same organisation which [Mr E] supported. The second applicant knew that they were [Mr E]’s people because ‘…they were shouting at us….clearly…’ This group also followed them to his father’s house. After this incident the applicant and second applicant fled to a [certain location] for safety and then proceeded to leave for Australia. The Tribuanl was told that the second applicant’s farther (who is a [religious official]) received threats from unknown persons and his home had been broken into and damaged in [2015].

6. The second applicant told the Tribunal that he believed that both he and his wife have been placed on a list of persons to be targeted by a radical Islamic group.

7. The Tribuanl asked the second applicant would he able to relocate if he was to return to Egypt in the reasonably foreseeable future. His response was to tell the Tribunal that his father’s home was [a distance] from Cairo and they (this radical group) found him again and assaulted his wife. It was he view that these groups of radicals are spread throughout Egypt and it is not safe for Coptic Christians or Christians generally, in Egypt.

   EVIDENCE PROVIDED TO THE TRIBUNAL BY [MR A]

8. [Mr A] presented himself as a witness and told the Tribunal that he was the applicant’s brother in law.

9. He told the Tribunal that he was a Coptic Christian.

10. The Tribunal was told that he had visited Egypt in the past and that the Egypt he had observed and experienced was a very different country from that which was in the news today. It was a more peaceful and tolerant country then, but not anymore.

11. For him ([Mr A]) he held great hesitation for the applicant and her husband if they were to return to Egypt. The situation was not good and anything could happen and this concern is only increasing on day by day basis.

    COUNTRY INFORMATION – COPTIC CHRISTIANS IN EGYPT AND SECTARIAN VIOLENCE

    An overview

12. The following information is included to provide a context in assessing the applicants’ claims. Unless otherwise stated it is based on the Department of Foreign Affairs and Trade (DFAT) country information on Egypt issued 19 May 2017. 

13. Coptic Christians comprise some 10 per cent of Egypt’s population of 83 million. They 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 a problem in poorer urban and rural areas.[4]

    [4] Freedom House, Freedom in the World 2017 Egypt 2017, Section B, Accessed: 9 September 2016

14. However, the Egyptian Constitution recognizes Christianity, along with Islam and Judaism and grants Copts the same rights and freedoms as other Egyptians.

15. That being the care, 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.[5]

    [5] United States Commission on International Religious Freedom (USCIRF) 2017 Annual Report: Egypt, Background and Egypt’s Constitution, April 2017, Accessed 3 May 2017

16. Sectarian tensions have increased in Egypt since the 1970s, due in part to economic problems and to the 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.

17. 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-trial detention in July 2014.[6] Elections held in May 2014 saw former defence Minister Abdul Fatah al-Sisi elected President.

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

    Egypt experienced a major decline in law and order in the wake of the 2011 Revolution, leading to a sizeable increase in violent crime, civil unrest and terrorist attacks. The Sisi Government’s strong emphasis on internal security has largely restored general law and order throughout most of Egypt. Large scale on-going protests such as those experienced in 2011 and 2013 have declined considerably.

18. In its 2017 DFAT country information report on Egypt it reported that Egyptian security forces have been engaged since 2013 in a military conflict with Islamic State-affiliated militant Islamists in the North Sinai province. Although authorities have tightly controlled reporting from the area, it is apparent that a significant number of security forces, militants and civilians have been killed in the conflict. The province has been under a state of emergency since October 2014.[7]

    [7] Department of Foreign Affairs and Trade Country Report – Egypt, 19 May 2017 p.7

19. Terrorist attacks have occurred regularly since the 2011 Revolution, and have primarily targeted security personnel and facilities. Recent attacks of this nature include a bombing in Giza in December 2016 that resulted in the deaths of six security officers, and an attack on a security checkpoint in the New Valley governorate in January 2017 in south-west Egypt that killed eight police and injured three others.[8]

    [8] Ibid p.7

20. Since December 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches (see also Religion – ‘Christians’). On 11 December 2016, an Islamic State suicide bomber targeted a church service in Cairo, killing 29 and injuring 49. On 19 February 2017, a group calling itself ‘IS Egypt’ released a video calling for the targeting of Coptic Christians. Two major attacks against Palm Sunday church services occurred on 9 April, both claimed by Islamic State. The first attack occurred in Tanta, killing 27 and injuring over 70. The second occurred at St Mark’s Cathedral in Alexandria, the historical seat of the Coptic Pope, killing at least 16 and injuring 66. Pope Tawadros, head of the Coptic Church, was delivering a service at the cathedral at the time, but escaped unharmed. In addition to the series of attacks on churches, around 154 Christian families fled the northern Sinai town of al-Arish in January-February 2017 after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants. The Grand Imam of al-Azhar strongly condemned the church attacks, while a faction of the Brotherhood also issued a statement of condemnation.[9]

    [9] Ibid p 7-8

21. In response to the Palm Sunday bombings, Sisi issued a Presidential Decree on 9 April 2017 declaring a nation-wide state of emergency, the first under the 2014 Constitution. The decree was passed unanimously by Parliament on 11 April. The state of emergency is governed by Law 162 of 1958, ‘The Emergency Law’. While the exact details of the Emergency Law and how it will be applied were unclear at the publication date, it is likely that the military will be granted extended powers. DFAT assesses that detentions and arrests are likely to increase as a result of the declaration of a nation-wide state of emergency. Sisi also proposed the establishment of a Supreme Council to combat Terrorism and Extremism, which would consider new powers for police and intelligence investigators and allow for the fast-tracking of terrorism cases through the court system.[10]

    [10] Ibid p 8

    Coptic Christians/Christians and Construction/Restoration of Churches

22. In August 2016, the Parliament passed Law 80/2016 required by Article 235 of the Constitution to allow Christians to build and renovate churches. Church building is one of the most sensitive communal issues in Egypt - a leading human rights NGO has stated that it is the source of around 20 per cent of clashes between Muslims and Christians. It has traditionally been extremely difficult to build a new church in Egypt, as local authorities have imposed convoluted processes to request permission and then ultimately refused the building permit. In contrast, there are minimal restrictions to building a mosque. There are reportedly approximately 2,800 registered churches throughout Egypt, compared to nearly 110,000 mosques.

23. Under the new law, Christians wishing to build a new church are still required to apply to the provincial governor for a building permit. The Christian community was divided over the new law in the lead-up to the vote. Many Christian politicians and activists spoke out against the law, claiming it only enshrined the existing bureaucratic hurdles used to prevent church construction, and that it codified discrimination against Christians. While initially critical, the Coptic Church ultimately spoke out in favour of the law after the Pope met with the Prime Minister, and many Christian MPs voted in favour of the law. However, there remains significant concern both within the Christian community and in civil society about how the new law will operate in practice, and whether it will actually make it easier for Christians to build new churches.

24. DFAT assesses that Christians are subject to official discrimination in relation to the building and restoration of their places of worship as they continue to face restrictions in doing so that do not apply to Muslims.[11]

    [11] Ibid p 11

    Christians[12]

    [12] Ibid p13

25. Christianity has deep roots in Egypt, arriving approximately six centuries before Islam. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the overwhelming majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are 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 in major cities 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 attained a range of education levels.

26. 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, or if the practice is increasing or decreasing.

27. 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 under-represented 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 in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.

28. Most Christians viewed the post-2011 Revolution ascendency 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 ascendency 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 Christmas Eve 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 Copts in Libya in February 2015. Following the December 2016 church bombing in Cairo, Sisi declared three days of national mourning, attended the funeral for 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 nation-wide 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.

29. DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal than 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 also 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.

    Communal violence

100.   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.

101.   The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) 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 ten incidents of communal violence occur each month in Minya.

102.   A general breakdown in law and order nation-wide 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 of 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.

103.   A November 2014 government report 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 one 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.

104.   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 Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a 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.

105.   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.

106.   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 in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.[13]

[13] Ibid p.12

Submissions on behalf of the applicant and second applicant by their representative

Summary points of the submission to the Tribunal dated 14 July 2017

Intervention in the forced conversion

§  These events occurred in 2013. Contrary to the delegate’s reasoning, it is not to the point whether forced conversion arising from outstanding debts is a ‘common occurrence’. The harm that followed is enough to engage protection obligations for these particular applicants, even if such conversions are not ‘a common occurrence’.

Arson attack on car

§  It is noted that the delegate did not accept that the applicant’s car was burnt, on the basis that the applicants did not take a photo of the car while it was burning. The suggestion that a rational person, upon seeing their car on fire, would first take a photograph of it, begs belief. At that point in time, with the making of a protection visa application in Australia the last thing on their mind, there was no reason for the applicants to take any such photograph. It is not as if the reporting of the car on fire to fire brigade needed it.

Burglary of the applicants’ house

§  They [the applicants] did not report the burglary of their home to Egyptian police, but that is because there has been (and still is) a failure of state protection in relation to Coptic Christians – a point acknowledged by other country information that the delegate relied upon.

Abduction

§  It is notable that:

(a)  The reports of [Ms B] and [Mr C] were obtained by the police without the other in the room but nonetheless consistent with each other.

(b)  The accounts of [Ms B] and [Mr C] at the Departmental interview are consistent with each other.

(c)  The reports with the police were timely, and

(d)  The Attorney General concluded that the events as reported had been ‘proved’.

Assault

§  [In] 2013, [Ms B] was assaulted for refusing to dress in a ‘Sharia way’. The assault was committed by men who were part of [Group 1]….The Deputy Police Commissioner who compiled the report noted that the report was consistent with injuries identified in subsequent medical examinations. Following the assault, the applicants fled and sought [shelter], while they made long-term arrangements to seek protection (ultimately in Australia). 

Summary points of the submission to the Tribunal dated 17 August 2017

Whether the applicants are, or still are, a target?

§  The reasons for them being targets specifically arise from them having been specifically targeted in the past, by [Mr E] or person thought to have been aligned to him. In this regard, we refer to the various incidents set in our previous submission date 14 July 2017.

§  To be clear, the applicants’ fear is of harm in the future, based on these past events. The real risk of future harm arises from:

(a)These past events being relatively recent;

(b)Both applicants having been devout Coptic Christians since birth. Leaving aside the specific incidents referred to in previous submissions.

(c)The letters from [Church 1] in Egypt, especially from [a particular individual] and the applicant’s involvement in his church group

(d)The applicants’ continuing to be involved in the Coptic Christian activities since having arrived in Australia

Effectiveness of State protection

§We repeat our previous submissions that there is no effective state protection for Coptic Christians in Egypt….despite apparent announcements by the Egyptian government to crack down on anti-Christian violence, such violence continues to occur.

Relocation

§Relocation would not be reasonable, for reasons explained in the previous submission [at paragraph 41] dated 14 July 2017.

ASSESSMENT AND FINDINGS

107.   The applicants claim to fear returning to Egypt because of the discrimination and persecution they would face as Coptic Christians, the constant threat of violence being perpetrated upon them because of their involvement in a local Coptic Church group which actively helped Coptic Christians defend them against forced conversions by radical Islamic organisations operating within the wider Egyptian society.

108.   Country information referred to earlier in this decision confirms there are discrimination at all levels of Egyptian society against Christians. The Tribunal accepts this is religiously motivated and is aimed at all religious minorities. The applicants’ experiences in relation to having difficulties in seeking effective protection under the rule of law within the Egyptian state apparatus because they are Christians is not unique.

109.   Enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[14] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[15] As Brennan CJ stated in Applicant A:

[14] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.

[15] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].

… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[16]

[16]Applicant A v MIEA (1997) 190 CLR 225, at 233.

110.   The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[17] In Applicant A Dawson J agreed with the observations of the Full Federal Court in that case that:

[17] See eg, Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA (1999) 57 ALD 613 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001). See further discussion below under the heading ‘Value-laden laws’.

Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.[18]

[18]Applicant A v MIEA (1997) 190 CLR 225, at 245 citing with apparent approval MIEA v Respondent A and B (1995) 57 FCR 309 at 319. Note that the description of harsh punishment under a generally applicable law as ‘persecution’ is inconsistent with High Court authority which holds that persecution necessarily involves discrimination, as do the requirements of persecution in s.91R(1)(a) and (c).

111.   Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[19] In some circumstances, it may be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention.

[19] See Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001), at [50].

112.   The High Court in Chen Shi Hai v MIMA confirmed that laws or policies which target, or only apply to, or impact adversely upon, a particular section of the population are not properly described as laws or policies of general application:

Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, “black children”, as distinct from children generally - cannot properly be described in that way. … To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.[20]

[20] Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] to [21]. See also per Kirby J at [72] and Wang v MIMA (2000) 105 FCR 548 at [50]-[68] where Merkel J (Wilcox and Gray JJ agreeing) discussed what the High Court and courts in other jurisdictions have said about ‘laws of general application’. Referring to Chen, his Honour at [65] reiterated that ‘[a] law that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing group, is not properly described as a law of general application’. Thus, laws regulating the practice of religion, requiring that they be practised or observed in a particular way or targeting or applying only to persons practicing religion, are not laws of ‘general application’. Nevertheless, consideration may still need to be given as to whether such a law has a legitimate object (see below). Although a law that is general in its terms may impact adversely upon a particular group, this of itself, will not necessarily mean it is not a law of general application, see comments in SZDNE v MIMIA [2004] FMCA 717 (Raphael FM, 14 October 2004) at [10]. The Court described the Nepalese law against bovicide as ‘truly a law of general application. It may have a different effect on different people because persons such as the applicant have no religious views concerning cows, but the law is the same for him as it is for the highest caste of Brahmin who may reside in Nepal’.

113.   In this case, the Tribunal has considered the country information as set out above and notes that discrimination on the basis of religion is prohibited under Egyptian law, however there are reports (referred to earlier) that confirm that Coptic Christians continue to face official and societal discrimination and that this has been prevalent for decades. The US Department of State’s International Religious Freedom report notes that although Egypt has legislation that prohibits discrimination on the basis of religion; in practice these laws are rarely enforced.[21] In October 2011, while 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[22] and added Article 161(ii), defining 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’,[23] and provides for fines or imprisonment, for perpetrators of acts of discrimination this amendment however does not include any enforcement mechanisms.[24] Further there have been no indications according the United States Department of State that during 2013 that the government enforced the 2011 amendments to the penal code that make discrimination a crime.[25] In 2014 DFAT has also reported that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[26]

[21] 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

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

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

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

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

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

114. Although the 2014 Constitution officially recognises Coptic Christianity and includes an anti‑discrimination clause and Article 53 of the Constitution prohibits discrimination on the basis of religion and belief,[27] country information indicates that it still remains to be seen whether there will be substantive legal and policy towards addressing the deep-seated discrimination Copts have faced in public office, education, political participation and other areas of civic life’.[28] The European Parliament also notes that taking into account that lack of legal implementation and a weak police response which 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.[29]

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

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

[29] 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

115.   The Tribunal notes that DFAT has assessed community prejudice against Copts to be pervasive and 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.[30] 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’.[31] 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.’[32] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[33] 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.’[34]

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

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

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

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

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

116.   As noted earlier reports published by the United States Department of State,[35] the Carnegie Endowment,[36] Open Democracy[37] and Ahram Online[38] between 2015 and 2013 all refer to Copts facing official discrimination in Egypt within the public sector including government, universities, security forced and the judiciary. Although DFAT has provided a different assessment stating that ‘Copts experience low levels’ of official discrimination[39] and 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.’[40]

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

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

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

[38] 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

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

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

117.   The country information indicates that while Egypt has anti-discrimination laws, the information confirms that these are often not enforced when it relates to Coptic Christians. Therefore the Tribunal accepts that as a Coptic Christian the applicants have faced discrimination in a manner in which they been removed from their apartment by unknown assailants which ransacked it because of their involvement with their Church group and actively participating in stopping a forced conversion of a fellow Coptic Christian. The manner in which the police investigations were conducted (without any result) as presented to the Tribunal by the evidence of the applicants suggested that they had very little chance of being accorded even minimal state protection in their situation and this was largely due to an innate discrimination within the law enforcement sectors of the Egyptian state.  

118.   The Tribunal also considered the claim of the applicants that having lost their security in their apartment they fled to the second-applicant’s father’s residence and yet there too they were located by Islamic religious fanatics and assaulted. The Tribunal also accepts the claim that the second-applicant’s father who is a [religious official] had been assaulted by radical elements also. It stands to reason in the opinion of the Tribunal that both applicants being devout Coptic Christians involved in their Church’s activities and the second-named applicant being also the son of a Coptic [religious official] created a very real risk of persecution wherever they chose to live within Egypt because they desired to practice the faith freely and openly and that it had become known in certain circles of the society they had a daily interaction with that they opposed and worked against the ‘forced conversion’ of Coptic Christians by radical Islamic organisations. In other words, the Tribunal considers their fears and concerns as substantial and legitimate. The Tribunal also notes that since April 2017, despite the declaration of a state of emergency by the Egyptian government sectarian violence has been on the increase and Coptic Orthodox Christians have suffered horrendous casualties and deaths as a result of who they are and what they believe in regardless of the assurance  and willingness of the Egyptian state to protect them against attacks by radical non-Christian elements and despite legal guarantees expressed in eloquent language in enactments of the Egyptian legislature and in the Egyptian Constitution. The Tribunal has noted recent developments regarding an increase in sectarian violence and the targeting of Coptic Christians and accepts that the applicants had been targeted in the past by radical Islamic elements because they were Coptic Christians and due to their involvement in their local church’s activities and in particular in assisting their local priest in combating ‘forced conversions’ of Coptic Christians.

119.   The Tribunal also accepts that the applicants have attempted to seek protection from the Egyptian authorities because of the attacks on their apartment and burning of their motor vehicle but had very little protection provided to them. Further, the Tribunal accepts that the applicants were forced to fee to the second-applicant’s father’s home and there too while both were attending a church service the applicant was assaulted by radical elements for not abiding by sharia law dress for women. The Tribunal accepts the evidence of the applicant’s representative and her brother in law that they would face insurmountable difficulties if they were to return to Egypt and tried to continue with their lives. The Tribunal notes that the Egyptian National Police are responsible for law enforcement nationwide and various sources including DFAT[41] indicate that police investigative skills remain poor and they suffer from shortfalls in training and equipment. The Tribunal acknowledges that the 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 particular in rural areas. In areas outside major cities, the police live in the community they police and are subject to local pressures to make choices that are congruent with dominant social mores. 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 in “MS (paragraph 151(1)) the UK Upper Tribunal found that there was inadequate state protection for Coptic Christians.[42] Inadequate protection which had been further made evident with repeated attacks on Coptic Christians this year in Egypt.

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

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

120.   In light of all the evidence, including the country information, the Tribunal is of the view that while official and societal discrimination of themselves may not constitute serious harm, the cumulative effect of these in conjunction to the applicants’ religion and their past experiences of harm may be sufficiently serious as to constitute persecution.

121.   The Tribunal is satisfied that cumulatively there is a real chance that the applicants are at risk of serious harm if they return to Egypt now or in the reasonably foreseeable future and there is a real chance that persecution will occur. This is based on the applicants’ past experiences (prior to leaving Egypt for Australia) of discrimination and harm as Coptic Christians and that supports a conclusion that their fear is well-founded. The country reports and recent disturbing developments in Egypt indicate that while a state of emergency had up to now contained sectarian violence, these disturbing recent events, indicate to the Tribunal that sectarian violence still occurs and there has been no appreciable change in the treatment of Coptic Christians.

122.   In this instance, the Tribunal considers the applicants’ cumulative circumstances are grounds for a well-founded fear of persecution.

123. Therefore the Tribunal finds that the treatment the applicants face on their return to Egypt amounts to serious harm on cumulative grounds. Therefore the Tribunal finds they satisfy s.91R (1) of the Act. The Tribunal is of the view that there is a real chance of persecution on the grounds of the applicant’s religion which includes their past experiences of discrimination and persecution and their membership of a particular social group namely as Egyptian Coptic Christians who have no safe place of residence because of their involvement in stopping forced conversions of Coptic Christians and have been targeted for harm.

124.   For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention and therefore the applicants satisfy the criterion for a refugee set out in s.36(2)(a) of the Act

DECISION

125.   The Tribunal remits the matter for reconsideration with the following directions:

1. That the first-named applicant satisfies s.36(2)(a) of the Migration Act; and

2. That the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Peter Vlahos

Member