1601121 (Refugee)

[2017] AATA 1028

1601121 (Refugee) [2017] AATA 1028 (6 June 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601121

DIBP REFERENCE(S):  CLF2013/295546

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Peter Vlahos

DATE OF DECISION:  6 June 2017

DATE CORRIGENDUM

SIGNED:4 July 2017

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 11 of decision record should read as follows:

For the following reasons, the Tribunal has concluded that the decision under review should be remitted with a direction that the applicant satisfies s.36(2)(a) of the Act

Peter Vlahos

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601121

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Peter Vlahos

DATE:6 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 June 2017 at 11:06am

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Christian – Particular social group – Elderly women – Illegal dispossession of residence – False charges of proselytising Muslims – No family support – Militant attacks on churches – State protection

LEGISLATION
Migration Act 1958, ss 36, 65, 91R(1), 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
Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)
Lama v MIMA (1999) 57 ALD 613
Lama v MIMA [1999] FCA 1620
SZDNE v MIMIA [2004] FMCA 717
Weheliye v MIMA [2001] FCA 1222
Wang v MIMA (2000) 105 FCR 548

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 protection visa [in] November 2013 and the delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 27 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son [Mr A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant was represented in relation to the review. The [representative] attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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

10. The issue in this case is whether Australia has protection obligations in respect of the applicant.

11. For the following reasons, the tribunal has concluded that the decision under review should be …

    Country of nationality and identity

12. Based on copies of the applicant’s passport, which was provided to the Department of Immigration and Border Protection (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Egypt and assessed her claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (as amended)(herein referred to as the ‘Act’). On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.

13. The Tribunal has before it the Department’s file relating to the applicant. 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.[1]

    Background

    [1] AAT File Folio 8

14. The [applicant] is [an age] year old widow and grandmother from Cairo, Egypt. She is a Coptic Orthodox Christian and speaks, Arabic. She married her late husband in 1972 and has [number] children, [number] of them living in Australia and her [other child], who lives in [Country 1]. The applicant has never worked and is illiterate. [The applicant] first travelled to Australia as a holder of a [temporary] visa in November 2003 and stayed in Australia for three months. She subsequently visited Australia two more times, in December 2008 and in January 2010. [The applicant] last arrived in Australia [in] May 2013 as a holder [of a temporary] visa, which was valid for one year. [In] November 2013 [the applicant] lodged her application for protection visa (subclass 866) which is the subject of this decision. She is currently holding a Bridging (subclass 010) visa which was granted with her application.

15. [In] January 2015, the Department refused to grant [the applicant] a protection visa.

16. On 1 February 2016, the applicant applied to the Migration and Refugee Division of the Administrative Appeals Tribunal (the ‘Tribunal’) for a review of the Department’s refusal to grant her a protection visa.

17. The applicant provided the following documents to the Tribunal prior to the hearing:

    §  Appointment of Representative and Appointment of Authorised Recipient – MR Division form appointing [the representative] as the applicant’s representative.[2]

    §  Extract of Translation in English of residential lease agreement.

    §  Applicant’s representative written statement.

    §  Applicant’s written statement to the Tribunal.

    §  Written statement of the applicant’s son, [Mr A].

    [2] AAT File Filo 61

    The Applicant’s claims for protection

18. The applicant’s claims can be summarised as follows:

    §She is a practising Coptic Orthodox Christian from Cairo, Egypt.

    §After her marriage she lived with her late husband’s family in a rent-controlled [apartment]. Following the death of her late husband in 1999 the applicant inherited the lease of the apartment.

    §The applicant’s [Relative 1], who suffers from [an] impairment, and his family (inclusive of his wife and [children]) also live in the same apartment.

    §The applicant’s [children] became permanent residents of Australia in [year] and [year] respectively. The applicant’s [other child and] family sought and were granted asylum in [Country 1] in 2009.

    §[In] June 2012, the applicant travelled to [Country 1] to visit her [other child] and returned to Egypt [in] November 2013. She soon discovered that the Muslin owner of the apartment [had] required her and her [Relative 1’s] family to vacate the apartment and produced a document starting that the applicant had agreed to relinquish her lease at a price.

    §The applicant took the document to the police and pointed out that the document was falsified because it was allegedly signed by the applicant on [a date in] June 2012, whilst she was physically in [Country 1] at that time. The subsequent forensic examination of the document, conducted by the [a government agency], confirmed that the document was indeed falsified.

    §[In] March 2013, [the owner] accused the applicant of holding religious meetings and preaching Christianity to Muslim girls in her apartment. The applicant was consequently arrested by the police [in] March 2014. The applicant denied all allegations and was granted bail after paying EYP [amount] as a surety.

    §Since arriving in Australia the applicant has been advised by her neighbour that her [Relative 1] has been evicted from the apartment by the landlord and is now living with his wife’s family. The applicant has also been advised by her lawyer that she could potentially face the death penalty on the charges against her.

    §The applicant fears that she will be prosecuted and wrongfully convicted on false allegations against her should she return to Egypt now or in the reasonably foreseeable future.

    The Tribunal asked the applicant whether she wished to add, vary or change her claims and the Tribunal was told that she had no further claims.

    Applicant’s Evidence to the Tribunal

    Background

19. While in Egypt before leaving for Australia, the applicant lived in Cairo. Although born in Upper Egypt she took up residence in Cairo after her marriage to her late husband and resided there for most of her until coming to Australia. Her marriage to her late husband occurred when she was [age] years of age and she lived with her husband’s parents in an apartment. The applicant has [number] children – all adults. [One child] lives in [Country 1] on a permanent basis while her [other children] live in Australia and are Australian citizens. In Australia, the applicant resides with her [son] [Mr A] and at times alternates her living pattern as she needs to so as to assist her [children] and their families with a series of home duties which, according to the applicant she fulfils on a daily basis since she first arrived in Australia.

    The dispute with the landlord concerning the lease of the apartment in 2012

20. [The applicant] told the Tribunal that she originally came from a very poor family. Her marriage to her late husband did not take away that poverty because he, for most of his life, worked as a casual worker and the income he provided for the family was very low. Hence, the applicant’s married life commenced and ended living with her husband’s parents in a rented apartment. After the death of her husband’s parents, the applicant’s husband assumed the lease rights over the apartment and the applicant and her family which also included her [Relative 1 with the impairment] continued to reside there.

21. After a number of years, the children left to live overseas and [the applicant], a widow, since 1999 continued to live at the apartment with her [Relative 1 who has an impairment]. The applicant’s explanation to the Tribunal concerning her proprietary rights with regards to her apartment, [the applicant] said that (her understanding of Egyptian law) the ‘law’ in Egypt provided provision where an apartment is rented by a family on a long lease duration that lease is considered an ‘endless lease’. The meaning of ‘endless’ the Tribunal was told meant that surviving family maintained the right to continue to live in the apartment for the current or any additional lease period.

    Then, after a few years had passed, the applicant decided to visit her [other child] in [Country 1] on a holiday and left Egypt for a few months. It was in this period of time when she was away from Egypt that her problems arose. [The applicant] told the Tribunal that in her absence, the landlord, went to see her [Relative 1] and (according to the applicant) convinced him to sign an agreement which relinquished the occupation of the apartment. When [the applicant] returned to Egypt she was informed that she had to vacate the apartment because there was no longer a lease agreement in place. [The applicant] refused tom accept this fait accompli. In response, the landlord claimed and produced a similar agreement allegedly signed by [the applicant]. [The applicant] disputed the document’s authenticity, claiming it was a forgery and referred the matter for investigation to the local police station. The police, the Tribunal was told, undertook a thorough investigation and determined after a number of forensic examinations that [the applicant] had not signed the agreement ending the lease and the original lease was reinstated.

    The claim that the applicant’s apartment was used for the instruction and conversion of Moslem girls to the Coptic faith

22. The reaction by the landlord was swift and direct against [the applicant’s] actions in reporting him to the police. With her reinstatement in the apartment, the landlord began his daily taunts and threats against her. However, the [the applicant] said that she did not choose to report these incidents to the police because she considered them as a reaction to a dispute that had been settled and would in time dissipate. However, one morning, (the applicant was not clear when, this occurred) the police came and took her away to the police station for questioning. The Tribunal was told that the applicant had been accused by her landlord of conducting sessions of conversions of Moslem young girls to the Coptic Orthodox Christian faith using her apartment which she as renting as a meeting place for these purposes.  

23. At the police station the applicant was told the charges levelled against her by her landlord and she refused to accept them as valid. She was then advised that if she wished to contest them, she would first, need to raise bail and then engage with a lawyer in the courts. Indeed, she was able to secure her release because one of her neighbours who had observed for daily verbal denouncements of her landlord against her agreed to provide the moneys for her bail.

24. The applicant told the Tribunal that as far as she could recall, the matter is still pending in the courts but she experienced difficulties in providing further explanations the Tribunal with any further details about the court proceedings.

25. In response, the applicant was asked – how she managed to leave Egypt when she was a defendant in criminal proceedings before the Egyptian courts. [The applicant] told the Tribunal that at the time, she had engaged a lawyer (with financial help from her children) who assured her that he would engage with the court in actively defending her innocence and advised this to the court and then managed to place the matter on hold which enabled her to leave for her trip to Australia. The applicant also told the Tribunal that the advice she received from her lawyer before leaving Egypt was that cases like this take many years to come before the courts for finalisation and it was fine for her to go to Australia. The applicant followed that advice. 

26. The Tribunal asked the applicant – what has happened with her apartment while she had been in Australia. The applicant told the Tribunal that the apartment has now been taken over by her landlord. The Tribunal asked the applicant to explain how the landlord was able to gain control of her apartment in her absence. The applicant offered minimal recollections and explanations and became very emotional. The applicant told the Tribunal that her [Relative 1 who has an impairment] is now living with his immediate relatives and that all her possessions what could not be salvaged by her family were dispersed by the landlord to various neighbours. As far as the applicant could tell the Tribunal was that she had no home to return to in Egypt and that that she could not understand how this all happened. She had nothing of value or anything to return to in Egypt. The Tribunal asked the applicant if her relations in Egypt would be able to lend support to her and seek on her behalf some redress. The applicant told the Tribunal that she expected little support from her relatives in Egypt. After all, each (according to the applicant) has his ‘own family to take care of…’ As for further legal action in the courts against the landlord, the applicant said ‘that would cost a lot of money and that was money she did not have.’

    Discussion concerning applicant’s delay in applying for Protection visa

27. The applicant was asked to explain why she had delayed in making her application for protection visa even though, her home and possessions were lost due to the actions of her landlord. The Tribunal was told that there was a delay because her son ([Mr A]) was trying with her lawyer in Egypt to work matters out but proved to be difficult to receive an actual indication from the lawyer what was actually going on. Indeed, in these discussions with the lawyer in Egypt, the applicant was told that matters concerning her landlord had escalated in her absence even further and that the applicant would, if she returned to Egypt face severe charges for proselytising Moslem girls (as her landlord had accused her) and could not only face homelessness but also a term of imprisonment. The Tribunal was also told that the applicant’s lawyer had encountered enormous difficulties in retrieving court documentation concerning these matters.

28. The applicant offered no further comments to the Tribunal.

    Evidence – applicant’s son [Mr A]

29. The applicant’s son ([Mr A]) told the Tribunal that he arrived in Australia from Egypt in 2007. He worked hard to establish himself as a young migrant in this country and he has secured his living here. He is also an Australian citizen. He met his wife here and in 2009 he married. The Tribunal was also told that in 2009, his mother, came to Australia for his wedding and came again in 2013 to witness his child’s baptism.

30. [Mr A] told the Tribunal that it was heartbreaking for him to see his mother destitute. She had lived in the apartment all of her life. She had many good memories there. It was home for his mother even if she rented it. The apartment was the place where she raised all of her children and now she had nothing to come back too. Her apartment had been repossessed and all of her belongings dispersed and she could not retrieve them. Indeed, [Mr A] told the Tribunal that while his mother was visiting his [sibling] in [Country 1], the landlord had concocted documents which were allegedly signed by [([Relative 1] who [has an impairment])] and had ‘forged his mother’s signature’ relinquishing the lease over the apartment. [Mr A] also told the Tribunal, that when his mother returned to Egypt she disputed the authenticity of these documents and took action against her landlord by reporting him to the authorities. After an investigation by the authorities his mother was supported and reinstated in her apartment. [Mr A] also confirmed for the Tribunal that subsequently, his mother had been falsely accused (by the landlord) for using her apartment for proselytising young Moslem girls.

1. [Mr A] also told the Tribunal that some legal advice had been obtained concerning the issues faced by his mother but it was difficult to get anything done in Egypt because of the unstable situation which exists there. He conceded that both the family and his mother have found it difficult to seek redress within the Egyptian legal system because they are Coptic Christians. He believed if his mother was to be sent back to Egypt, she had nothing to go to. She would be destitute with no immediate family to assist her and to help her with her day to day needs. Moreover, his mother’s incoherency (at times) and her confused state of mind made it difficult to believe that she would survive without some immediate family assistance. In reality, his mother had nothing to go to. There was family in Egypt but they had their own issues to deal with and could not be relied upon to assist.

2. At this point in the proceedings, [Mr A] became very emotional and paused.

3. Regaining his composure, [Mr A] told the Tribunal that he was self-employed [and] able and willing to provide together with is [other] siblings everything his mother might require. He feared for applicant’s long-term health and well-being. After all, she had nothing to look forward to if she was to return to Egypt. In other words, her family was here in Australia.

   The applicant’s [representative]

4. The representative was happy for the Tribunal to take note of her written statement provided to the Tribunal prior to the hearing.

5. In summary the applicant’s representative’s submission to the Tribunal at the hearing was as follows:

   §  The applicant is at times incoherent in her native tongue. Those closest to her including (the representative) are often letting the fact that we don’t understand what she said, slide and pass by so as to not intimidate her. Especially listening to her Arabic, and not through a translator surprisingly easier to pick up on the gravity of the effect of her illiteracy.

   §  She (the applicant) already has difficulty with dates.

   §  It is no wonder to me (the representative) at all, how difficult it would have been to extract meaningful and plausible information from her (the applicant) when she is not being aided, in writing as I have done so in her current submission.

   §  Copts

   I’d like to draw your attention to something whilst not personally impacting on the applicant, is all too real to disregard about the situation in Egypt as a result of the Islamic State deep infiltration (A video)

   §  I imagine that one could submit a dossier supporting of supporting material, press releases, media clippings and NGO reports. However I ask that you (the Tribunal) cast your eye over a few here, just to skim through:

   htttp:// mr 170410.aspx

   rss

   http//:au.news.yahoo.com /world/a/34972150/is-claims-palm-Sunday-church-bombings-in Egypt-45-dead/#page1

   –cabinet-approves-threemonth-state-of-emergency.apsx

   These pertain not to another uprising, or another wave of tensions, but rather real terror on Copts. No longer can the situation for Copts be disregarded as low-risk.

   Apartment relinquishment dispute

   §  I find it unjust that [(the applicant)] would make a “mahhdar” that is a formal statement about the fraudulent agreement in which her signature was forged and then still, it is practically disregarded and never implemented subsequently. This is gross discrimination.

   §  At some point, if truly DIBP or the MR Division at the AAT do not understand how the former lease agreement in Egypt work and how they are inherited, then it is absolutely necessary to explain this meticulously.

   Greater legal matter that awaits the applicant – Criminal

   §  The applicant and her family agree in a nutshell the charges that the lawyer stated on the phone recently are:

   oProselytizing Christianity

   oBlasphemy against Islam, accused of being in contempt of Islam

   §  These are very serious charges in Egypt carrying heavy sentences, according to the country’s Constitution and penal code. Both are false, she has never done either. Her lawyer’s reaction to these was the most fear-enticing as he reiterated that it’s simply better not to return to Egypt and meet an ill-fate. …

   §  There is so much fear because when you consider the corruption, the landlord’s ties and links, his fearless methods and lack of regard for the law (which is meant to be adhered to) and what he has been able to accomplish so far. …

   §  It is indeed challenging overall to obtain the succession of events that occurred leading to [the applicant’s] application for asylum. I trust that she will be afforded the benefit of the doubt before any further adverse decisions are made or laid out, especially as nothing was obtained fraudulently and I firmly attest to that.

   Country Information – Coptic Christians in Egypt and sectarian violence

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

7. Coptic Christians comprise some 10 per cent of Egypt's population of 83 million. They are present in most parts of the country and are represented at all levels of society. Copts have access to all levels of education, and are present in most areas of employment. There are prominent and influential Copts in politics, business and the arts. However, Copts have long faced some degree of societal discrimination. Few Copts hold senior positions in institutions such as the military, universities and the public service. There is also sporadic harassment of Christians in some areas, for example targeting women with uncovered hair. Discrimination and prejudice are more of a problem in poorer urban and rural area.

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

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

10. Sectarian tensions have increased in Egypt since the 1970s, due in part to economic problems and to weakening of law and order mechanisms. The resulting outbreaks of sectarian violence have mostly taken the form of vandalism and destruction of property and have occurred mostly in Upper Egypt, although Cairo and Alexandria have also been affected.

11. Egypt has experienced a number of significant changes in recent years. The Mubarak regime was overthrown in January 2011 and replaced with a military council which ruled until elections in June 2012, which were won by Mohammad Morsi of the Muslim Brotherhood. Morsi's government was removed by the military in July 2013 and replaced with a military dominated interim government which banned the Muslim Brotherhood in December 2013 and arrested between 22,000 and 29,000 Muslim Brotherhood supporters or suspected members, of whom some 7,000 remained in pre-trail detention in July 2014.[3] Elections held in May 2014 saw former defence Minister Abdul Fatah al-Sisi elected President

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

12. While there is no evidence of a significant increase in sectarian violence during the time Morsi was President, there was an increase in the number of ultra conservative Islamist groups such as Salafist parties and in the frequency of negative and sometimes inflammatory anti-Christian statements which in turn contributed to an increase of threats and attacks on Christian communities in some areas.[4]

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

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

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

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

    ...most Egyptians, especially those living in urban areas, work, live and socialize together with little regard to each other's religious identity.

    However, small-scale disputes (such as neighborhood disagreements) can adopt religious overtones and escalate into community-level violence. This is particularly the case in poorer rural and urban areas. Spikes in communal tensions can also coincide with broader political upheavals (2.20).

16. Similarly, after reviewing information from a range of sources the UK Border Agency concluded in its Country Information and Guidance Egypt: Christians report of 30 June 2014, 'although Christians do face personal and collective societal discrimination and repeated instances of sectarian violence, Christians in Egypt are not in general at risk of persecution or ill-treatment.’[5]

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

17. However, the most recent United States International Religious Freedom Report[6] indicates that the Egyptian government failed to respond to or prevent sectarian violence in some cases, in particular outside of major cities according to human rights advocates and continued to hold “reconciliation sessions” to address incidents of sectarian violence which adopted findings favoring members of the majority Muslim community most of the time. “Reconciliation sessions” after sectarian attacks were used instead of prosecuting perpetrators and these sessions preclude recourse to the judicial system because in most cases the parties agreed to drop all formal charges and lawsuits and stipulated by the terms of the session. They failed to prosecute It was also reported that religious minorities continued to face significant threats of sectarian violence according to religious and human rights groups. There were also reports of lethal sectarian violence continuing over the year.

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

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

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

    Discrimination

19. Discrimination on the basis of religion is prohibited under Egyptian law; however Copts continue to face official and societal discrimination. Amnesty International reports that it and other human rights organisations have documented a pattern of discrimination against Coptic Christians in Egypt that has been prevalent for ‘decades’.[7] Similarly, the European parliamentary Research Service states that Egypt’s religious minorities, including Copts, have suffered for decades from discrimination.[8]

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

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

20. Egypt has legislation that prohibits discrimination on the basis of religion; however, in practice these laws are rarely enforced.[9] In October 2011, the Supreme Council of the Armed forces issued a decree to amend provisions of the Egyptian Penal Code to explicitly prohibit discrimination on religious grounds.[10] The decree added Article 161(ii), which defines discrimination as ‘any action, or lack of action, that leads to discrimination between people or against a sect due to gender, origin, language, religion, or belief’.[11] It establishes a minimum and maximum fines (from EGP30,000 (approximately AUD 4,929)[12] to EGP50,000 (AUD 8,216)) and/or imprisonment, for perpetrators of acts of discrimination. The article adds more severe penalties for government officials who commit a discriminatory act,[13] with a minimum sentence of three months’ imprisonment and/or a minimum fine of EGP50,000 (AUD 8,216) and a maximum fine of EGP100,000 (AUD 16,438).[14] USDOS reports, however, that the amendment does not include any enforcement mechanisms.[15] The report notes that during 2013 ‘there were no indications in the media that the government enforced the 2011 amendments to the penal code that make discrimination a crime.’[16] Similarly, the January DFAT 2014 report on Copts states that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[17]

    [9] 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

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

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

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

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

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

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

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

21. The 2014 Constitution officially recognises Coptic Christianity and includes an anti‑discrimination clause. Article 53 of the Constitution prohibits discrimination on the basis of religion and belief.[18] Although the Constitution reaffirms Islam as the state religion, it recognises Christianity as one of the ‘heavenly religions’ and acknowledges the Coptic Orthodox Church as an official sect of Christianity.[19] However, Minority Rights Group International states that ‘it remains to be seen whether there will be a substantive legal and policy shift towards addressing the deep-seated discrimination Copts have faced in public office, education, political participation and other areas of civic life’.[20] Reporting on the likely effect of the Constitution, the EIPR states that ‘taking into account that lack of legal implementation and a weak police response are among the main causes of violence and discrimination of religious minorities in Egypt, it is unlikely that any improvement in the legal framework will bring changes to the situation on the ground.’[21]

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

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

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

    [21] 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

22. Sources indicate that Copts continue to face official and societal discrimination. Several reports were located stating that despite initial optimism on the part of Copts, and public messages of support by President el-Sisi for the Coptic community, discrimination against Copts has continued since el-Sisi was elected.[22] Regarding societal discrimination, DFAT assesses that that ‘community prejudice’ against Copts is ‘pervasive’ but the likelihood of encountering societal discrimination is ‘heavily dependent on geographic and socio‑economic factors’, with discrimination ‘low‑level and infrequent’ in middle class urban areas but ‘higher’ in poor urban and rural areas.[23] 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’.[24] 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.’[25] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[26] 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.’[27]

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

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

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

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

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

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

1. Reports published by the United States Department of State,[28] Carnegie Endowment,[29] Open Democracy[30] and Ahram Online[31] between 2015 and 2013 all state that Copts face official discrimination in Egypt, particularly with respect to appointments to senior positions within the public sector, public universities, security forces, judiciary and Egyptian government. In its January 2014 report on Copts in Egypt, DFAT provided a somewhat different assessment stating that ‘Copts experience low levels’ of official discrimination.[32] 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.’[33]  DFAT does report, however, that ‘societal discrimination can create a “glass ceiling” for promotions’ as ‘Copts tend to be under-represented in senior civil servant roles and in the upper ranks of the military and security services.’[34] According to DFAT ‘subtle favouritism and patronage could rule Copts out of senior positions.’[35]

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

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

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

   [31] 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

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

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

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

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

2. The May 2017 DFAT Country Information Report[36] - Egypt indicates that Coptic Christians have experienced a changed security situation in Egypt. According to the report:

   2.30Since December 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches. 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 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 these 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.

   2.31In 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 assess that detentions and arrests are likely to increase as a result of the declaration of a nation-wide state of emergency.

   [36] Department of Foreign Affairs and Trade 2017, DFAT Country Information Report- Egypt, 19 May, at pp.7-8

   Post-Hearing submissions on behalf of the applicant by her representative

3. The applicant’s representative also provided the Tribunal with a post-hearing submission which in summary made the following points on behalf of the applicant:[37]

   §No immediate family in Egypt.

   §No legal right to re-possess my apartment. The applicant does not have the means financial or otherwise to begin a lengthy likely fruitless endeavour such as legal action against [(the landlord)]. These matters in Egypt can be held up for a decade. Extremely lengthy and costly process reaping little if not zero benefit. Again, much less, just the financial costs involved neither ‘bringing’ nor instigating an action; the applicant does not have the finances or the ability to access the required finances. After the applicant received the shock of being sidelined with more pressing legal and criminal issues, the applicant still re-visited the idea but found (1) the legal advice to stay away due to large legal repercussions, and (2) the applicant was incapable and had no means, even if nothing was preventing her from being in Cairo.

   §No extended or in-law family able/and or willing to assist with residential needs. They (extended family) are all struggling in over-populated survival-of the-fittest conditions and are much older than the applicant. No one is able to support. The applicant would be rejected by default and with regret. There is nothing the applicant can do. Most of them (the extended family) the applicant did not have their contact details

   §No support in Egypt. The applicant has no one in Egypt who would look after her and take care of her needs.

   §No friends or neighbours to call upon to assist. There is no refuge to rely upon because the applicant has been absent from Egypt for a long period of time.

   [37] AAT File Folio 75

   Assessment and Findings

4. The applicant claims to fear returning to Egypt because of the discrimination and persecution she would face as a Coptic Christian, imprisonment because of false charges pending in the courts for proselytising Moslem girls in her former apartment and homelessness and destitution because of her apartment having been repossessed by her former landlord under false pretences.

5. Country information referred to earlier confirms there is discrimination at all levels of Egyptian society against Christians. The Tribunal accepts this is religiously motivated and is aimed at all religious minorities. The applicant’s experience in relation to having difficulties seeking justice within the Egyptian legal and justice system because she is Christian is not unique.

6. Enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[38] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[39] As Brennan CJ stated in Applicant A:

   … 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”.[40]

   [38] 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.

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

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

7. 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.[41] In Applicant A Dawson J agreed with the observations of the Full Federal Court in that case that:

   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.[42]

   [41] 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’.

   [42]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).

8. Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[43] 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.

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

9. 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.[44]

   [44] 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’.

10. 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.[45] 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[46] 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’,[47] and provides for fines or imprisonment, for perpetrators of acts of discrimination this amendment however does not include any enforcement mechanisms.[48] 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.[49] In 2014 DFAT has also reported that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[50]

    [45] 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

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

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

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

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

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

11. 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,[51] 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’.[52] 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.[53]

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

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

    [53] 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

12. 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.[54] 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’.[55] 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.’[56] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[57] 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.’[58]

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

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

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

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

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

13. As noted earlier reports published by the United States Department of State,[59] the Carnegie Endowment,[60] Open Democracy[61] and Ahram Online[62] 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[63] 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.’[64]

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

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

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

    [62] 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

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

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

1. 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 applicant has faced discrimination in a manner in which she has been removed from her apartment by her landlord falsely accusing her of conducting religious meetings in her apartment with the aim of proselytising young Moslem women in favour of the Coptic Orthodox faith and the Tribunal also accepts there may be a real chance she will be discriminated against if she chose to pursue to defend herself in court and seek the restoration of her rights as a tenant to occupy her apartment.

2. The Tribunal also considered the claim of the applicant that having lost her possession of her apartment in Cairo and all her possessions she was destitute with nowhere to live if she was to return to Egypt in the reasonable foreseeable future. The Tribunal noted that the applicant told of having no support from her extended family in Egypt and therefore would have nowhere to live. Moreover, the applicant is frail and in a fragile mental state and is largely dependent on her children, here in Australia, for her day to day needs. Indeed this concern was highlighted both in evidence by the applicant’s son and by her appointed representative and the Tribunal accepts these concerns as legitimate. The Tribunal also notes that since April of this year, 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 of the Egyptian state’s willingness 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 applicant had been targeted in the past by her landlord and accepts this was because she identified as Coptic Christian and was open to the same threats if she was to return to Egypt and seek to reassert her interest in her apartment.

3. The Tribunal also accepts that the applicant has attempted to seek protection from the Egyptian authorities because her landlord had sought by illegal means to regain possession of her apartment. The Tribunal accepts that the applicant was successful on one occasion in her attempt to reassert her rights under her lease. Further, the Tribunal accepts that the applicant has pending charges for proselytization pending brought against her by her landlord – a Moslem who has re-entered and taken possession of her apartment. The Tribunal accepts the evidence of the applicant’s representative and son, that she would face insurmountable difficulties if alone in Egypt she (a woman with her limited abilities) attempted to seek redress for the charges levelled against her for proselytization and for asserting her legal rights pursuant to her re-possession of her apartment. The Tribunal notes that the Egyptian National Police are responsible for law enforcement nationwide and various sources including DFAT[65] 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.[66] Inadequate protection which had been further made evident with repeated attacks on Coptic Christians this year in Egypt.

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

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

4. 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 applicant’s religion and her past experiences of harm may be sufficiently serious as to constitute persecution.

5. The Tribunal is satisfied that cumulatively there is a real chance that the applicant is at risk of serious harm if she returns to Egypt now or in the reasonably foreseeable future and there is a real chance that persecution will occur. This is based on the applicant’s past experiences of discrimination and harm as a Coptic Christian and that supports a conclusion that her 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.

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

7. Therefore the Tribunal finds that the treatment the applicant faces on her return to Egypt amounts to serious harm on cumulative grounds. Therefore the Tribunal finds she satisfies 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 her past experiences of discrimination and here membership of a particular social group namely an Egyptian Coptic Christian elderly woman who is homeless targeted for harm.

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

   Peter Vlahos
   Member