1603017 (Refugee)

1603017 (Refugee) [2019] AATA 1873 (31 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603017
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Paul Windsor
DATE:31 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 31 January 2019 at 2:51pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian – discrimination – property dispute – State protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
[The first named applicant] and her daughter [the second named applicant], who claim to be citizens of Egypt, applied for the visas on 18 September 2013 and the delegate refused to grant the visas on 22 February 2016. The delegate refused to grant the visas on the basis that a forensic examination of purported police reports submitted in support of the application revealed that the documents were most probably fraudulently generated, discrediting the applicants’ claims, and because the applicant could not articulate the nature and progress of the claimed legal proceedings against her. Noting other concerns in relation to [the first applicant]’s claimed residential and mail addresses and the delay in her departing Egypt after her Tourist visa was granted, the delegate concluded that the applicant’s account of her circumstance was not a genuine and reliable account and dismissed the entirety of her claims for protection. The delegate also found that relevant country information indicates that Coptic Christians generally do not face a real risk of persecution in the urban areas of Egypt.
[The first applicant] appeared before the Tribunal on 11 July 2018 to give evidence and present arguments. [The second applicant] did not attend the hearing. At [the first applicant]’s request, this was a joint hearing along with her mother, [Ms A], who is the review applicant in case 1603044. The Tribunal also received oral evidence from Father [B], the applicants’ parish priest in Australia, and [Mr C] ([the first applicant’s] husband) by telephone from Egypt. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her Protection visa application [the first applicant] claims to be a citizen of Egypt who was born in Cairo Egypt on [date]. She states that she belongs to the Coptic Orthodox ethnic group, is a follower of the Orthodox Christian religion and speaks, reads and writes Arabic. She indicates that she was married [in] April 2010. She indicates that she departed Egypt legally in August 2013 and entered Australia [in] August 2013 on a Visitor visa.[1]
[1] See folios 17-37 of the first Departmental file.
[The first applicant]’s daughter, [the second applicant], applied as a member of the same family unit who does not have her own claims for protection. Her protection visa application indicates that she is a citizen of Egypt, was born in Cairo Egypt on [date] and is a Christian.[2]
[2] See folios 61-67 of the first Departmental file.
[The first applicant]’s claims for protection were outlined in a statement submitted with her Protection visa application.[3] Her claims are summarised as follows:
[3] See folios 32-38 of the first Departmental file.
·She was treated very badly at school because there were few Christian students and they were separated from the other students. She got depressed because Muslim students could insult them constantly without any fear.
·Later she had to change schools because they moved address and there were no other Christian students. She was not welcomed at all and faced a lot of challenges from fellow students.
·She completed Year [number] and went on to study [specified discipline]. The Christian students were isolated from the Muslim students and the Muslim students demanded they dress like the Muslim girls, at a minimum wearing a hijab. They were judged, followed and put-down.
·They had to go to their church by private bus provided by the church for their safety. There was a mosque near the church that caused them a lot of problems. They went past this mosque in groups for safety and worried for the children who attended classes at this church.
·A new church was built in secret in their area as they were afraid of Muslim Brotherhood and Salafyeen in that area.
·One day she was threatened by a boy on the street for not wearing a hijab. Everywhere she went she was abused and harassed on the streets because she is a Christian and was not wearing a veil. One day she was abused by the son of a Sheikh of a local mosque when she went with her mother to visit her grandmother.
·Her father bought a block of land in a new subdivision in [year] as he wanted to build a house to accommodate himself and all his children and their families so they could live together and not fear being by themselves. They moved in once he finished the building in around December 2008. As her father was scared that something might happen to him he put the entire title of the house and land under her mother’s name. Her husband wished to pay for their apartment on the first floor, and put it under her name. In October 2010 her husband also bought the ground floor to use as an [office] and also put this in her name.
·After she got married they were living at [specified address] and in front of their house was a double story building where a Muslim person lived who used to fight with them every day for no reason. One day this man parked his car on her place. When she asked him to move it he became angry and kept insulting her and suddenly took out his gun and fired a shot in the air. This really scared her and she left shocked and went into her home. All the neighbours were on his side. After that she was too scared to go outside for a long time and did not know how to cope with the situation anymore.
·After her daughter was born the situation in Egypt was not safe at all. The Muslim Brotherhood took over the Presidency and the country faced a lot of violence. The Muslim Brotherhood and El Salafyeen were very close in their suburb and were constantly attacking Christians saying that Christians are against the Muslim religion and should all go away from there.
·Once the uprising occurred in January 2011 followed by the Muslim Brotherhood and their associated Muslim extremists coming to power the extremists started to take control of everything in Egypt and implement a plan to take control of businesses, land, assets and whatever they could from Christians in particular as they consider Christians to be infidels.
·A few months after the revolution her father was approached by the previous owner of the land who said he wanted to but the land back but he offered only a [little] more than the initial purchase price. This was nonsense as the price offered did not cover the cost of building let alone cover the cost of inflation and value adding on the land they had bought in [year]. Her father realised he was seeking to exploit them as they are Christians with no rights.
·Her father told this man he did not wish to sell and also mentioned that he has no right to sell as the property is now in the name of her mother and herself.
·In mid-2012 the previous owner approached her father again, saying he could not speak to women, and advised he wished to lease the ground floor to use for [specified use]. He also said they wanted to set up a small mosque or Quranic school. They saw this as trying to scare them and send a message. To buy time her father said they would think about it and discuss with family.
·Around two months [later,] a ‘bearded person’ with a group of three men approached their home asking for her father. They were scared and claimed he was ill and had been hospitalised.
·In early 2013 the previous owner came again with a group and told her father if he can’t get a lease signed he will ‘do it differently’ to convince his wife to sign. They were really scared as they have seen a lot of Christian families leave Egypt due to the actions of Muslim extremists, supported by Salafists and Jihadists, and government and police were under attack.
·Her mother and her were threatened and abused when they tried to go out. At that time they were asked by their neighbour to attend and report the matter to the police station. Her father and husband were away and they were really scared for their safety. The police said they would investigate the matter but nearly a week later they were requested to attend the police station and were told they had been accused of using their property to run Christian religious gatherings and meetings for prayers and meditation. They denied the allegations and insisted the action had been taken to get their house.
·They were released on bail of [amount] Egyptian Pounds each. They can’t get a fair trial because as Christians they have been discriminated against during the whole process. There is systematic and consistent incidents against Christians and over the last few months attacks against churches and Christians have increased and the government can’t protect them.
·The situation for females is very hard. Even if they prove the allegations against them are false, the previous owner of the land remains a risk to them as people like him are armed, have a lot of supporters and are willing to do anything for the sake of Islam and destroying Christians.
·She fears not only for herself but also for her daughter as this legal matter will follow her wherever she goes and there is no law and order in Egypt. She will be easily targeted as a Christian female. The Egyptian government downplays the problem and makes no effort to actively prosecute the attackers, investigate the crimes, educate the public or establish mechanisms to ensure the safety of women. Women and minorities have been increasingly vulnerable since the January 2011 uprising, facing new risks and threats of violence, including sexual assaults by extremely large groups of men.
On 13 February 2015 the then representative provided a submission to the Department in response to a request by the delegate to supply additional evidence and information and address certain matters raised by the delegate at an interview with [the first applicant] held on 20 January 2015.[4] Relevant additional matters raised in this submission are summarised as follows:
·He attaches a letter from the lawyer who is following up the legal matter which states the matter is still in court and is being ‘delegated in the sessions’. The letter confirms he has obtained a computerised copy extracted from the court which is proof the case is following the normal legal pathway.
·A police clearance for the applicant and extract from her driving licence show her place of residency as [a different address]. This is what the [land] was known as before it was subdivided and allocated a name and number.
·The applicant and her mother have been targeted because the property is in their names.
·The visa applicant lives in an area of Cairo that is very high risk as it has witnessed a chain of serious attacks by Muslim extremists on police and Christians, who are accused of supporting the current regime, since the fall of former President Mohammad Morsi.
[4] See folios 46-48 of the second Departmental file.

On 25 October 2017 the Tribunal received advice that the applicant had appointed a new representative.
On 24 January 2018 the current representative advised that they have been requested that this case he heard simultaneously with that of the [the first applicant]’s mother, [Ms A] (case 1603044), given the similar nature of the applicants’ claims and the surrounding issues which stem from events that have occurred in both Protection visa applications.[5] The representative also [attached] new (undated) statutory declarations of the events that took place with the former representative as well as the claimed facts of the persecution suffered.[6] Relevant additional matters from the statutory declaration by [the first applicant] are summarised as follows:
[5] See folio 41 of Tribunal file 1603017.
[6] See folios 39-40 of Tribunal file 1603017.
·She arrived in Australia with her daughter and mother in 2013 to help her sister care for her new born baby. Whilst they were away her father and husband urged them not to return as the situation surrounding their home had escalated.
·They wrote their statements of claims in Arabic due to their lack of English language at that time and [provided the statements to their then agent].
·[Eventually] she changed representatives and now provides an accurate [statement of claims].
·Coptic Christians are a widely persecuted minority in Egypt. They have experienced discrimination in their everyday lives.
·The targeted persecution they suffered was with regards to the land her mother and father purchased in [year]. The building initially was one level but continued to be under construction until it reached [number] floors.
·The area was very new and had not yet been zoned. After completion of planning the number of the land was changed to [specified address].
·She and her husband and her family also resided in this building along with her [family members and their families].
·The area contained a majority of Muslim residents with a minority of Coptic Christians residing there.
·There are two mosques located within close proximity of their home. [Mosque 1] was built after they built their apartment. It is located [within dozens of meters] from their home. [Mosque 2] is also within close proximity of their home.
·They began to experience harassment and persecution towards their family after the mosque had been built. Their land became of great interest to the owners of the adjacent mosque, for expansion purposes. Her father refused an offer to [sell]. The offer was much lower than what they had originally paid just for the land. After that the family began to experience many threats and acts of intimidation to persuade them to vacate the land. The persecution began to target her and her mother directly as their names were on the land title and because it angered her father and her husband. They experienced hostility in the neighbourhood, had an issue with their neighbour parking his car in their garage and he became vicious when they asked him move it. He began swearing at her saying she should not be there and that the street is for Muslims given the two mosques surrounding their building. The confrontation escalated and he drew a gun and fired a shot into the air to frighten them.
·After all the problems they faced they were forced to leave their home. The home remains abandoned due to their fears for their safety. Her father and brother are residing with her uncle and her husband was forced to abandon his [business] which he operated from [their home] and return to employment with his father. He is not working in [original occupation] currently but is undertaking casual work to make a living.
·It is still unsafe for them to return to their home with the mosques in operation.
·They are unable to sell the property in the general market and cannot sell to the mosque owners as they are not willing to pay market value which would enable them to remove themselves from the issue and rebuild their home.
·It is extremely difficult to relocate as Coptic Christians are widely persecuted throughout Egypt and this is displayed in all the recent attacks in Egypt.
On 31 May 2018 the representative indicated that the applicants request that the hearing, initially scheduled for 8 June 2018, be postponed as they wish to have a representative from the Coptic Church accompany them to the hearing. A letter of support dated 30 May 2018 from Bishop [D] of the [local Coptic Church] was also provided.[7] The Tribunal agreed to the request to postpone the hearing.
[7] See folios 58-64 of Tribunal file 1603017.
The representative made a joint submission in support of [the first applicant]’s and her mother’s (case 1603044) review applications (noting that the delegate’s decision records for both cases are largely identical) on 6 July 2018.[8] The submission included a range of medical, psychological, news and country information reports in support of the applicants’ claims. Additional relevant matters raised in this submission are summarised as follows:
[8] See folios 76-303 of Tribunal file 1603044.
·The applicants are Coptic Orthodox Christians who are very devoted to the Church services and religious beliefs. They hold a well-founded fear of returning to Egypt due to the strong foothold of the Muslim extremists throughout Egypt and the daily intimidation of Copts that systematically occurs throughout the country. Christians represent a 10 per cent minority in Egypt where approximately 90 per cent of the population are of the Islamic faith.
·The primary claim enlivening Australia’s protection obligations is the difficulties surrounding the property dispute itself, rather than the previous claims regarding pending legal charges.
·Preceding the lodgement of their protection applications, local tensions were rising as a result of neighbourhood disputes that local police refused to attend to, and bombs have been detonated and fires lit in Coptic Orthodox Churches across Egypt. 21 were killed and 70 injured in a church bombing in Alexandria on 1 January 2011 and on 9 March 2011, 13 were killed and 140 injured in clashes between Muslims and Coptic Christians in Cairo following protests after the January bombing.
·2011 was a year of significant violence against Coptic Christians. Each year since 2011 there has been a further incident of terror against Coptic Christians. On 11 December 2016 29 Coptic Christians were killed in a suicide bombing within St Peter’s Church.
·The 2017 DFAT Country Report indicated that a group calling itself IS Egypt released a video on 19 February 2017 calling for the targeting of Coptic Christians.
·On 9 April 2017 a device was exploded in a Coptic Church in the central Delta city of Tantra killing 27 and injuring 78. A few hours later a blast at the gates of St Mark’s Cathedral in Alexandria killed 18.
·Further attacks occurred in Minya province on 26 May 2017 and in Giza province on 29 December 2017.
·Egypt is in a state of Emergency while they attempt to battle terrorism in the country, however, incidents continue to happen and the military has no control over the militants.
·[Information deleted].
·[The first applicant]’s husband attempted to make a police report regarding the harassment the applicants had suffered but was informed by police that he could not make a third party complaint.
·[Ms A] had no knowledge of the documents from the lawyer in [Egypt]. She had no capacity to review the documents.
·The applicants’ remained unaware of [post-interview submissions] until these were sourced under the Freedom of Information Act by the [current representative.]
·The applicants were seeking protection due to the local tensions that had escalated as a result of their property dispute, and their well-founded fears of being seriously harmed or ostracised by the local Muslims if they returned to Egypt.
·The applicants ought not be forced to return to a country that cannot protect them and their fundamental human rights.
·The delegate should not have rejected the applicants’ claim for protection based purely on the dismissal of part of the evidence on account of a lack of credibility and should have still considered whether, on any other basis asserted, a well-founded fear of persecution exists.
·It is submitted that psychology reports attest to the fact the applicants are anxious and nervous surrounding the nature of this sensitive matter.
·Country information relied upon in four previous AAT cases was attached.
On 14 November 2018 the representative provided further country information regarding an Islamic militant terror attack, targeting buses carrying Coptic Christian pilgrims, which occurred in the Minya province of Egypt on 3 November 2018.[9]
[9] See folios 310-320 of Tribunal file 1603044.
On 18 July 2018 the Tribunal submitted a country information request to DFAT seeking to verify, through discreet observation, the applicants’ claims that their [property] remains vacant, and that the property is situated close to mosques [as described]. A response to this request was received on 10 December 2018 indicating that the building address exists; the building is a [building of specified description]; only an exterior inspection was undertaken and it was not possible to ascertain whether the address was inhabited; and there are numerous mosques in the vicinity of the address (not uncommon in most urban and densely populated areas of Cairo). A photograph of [specified street] and three photographs of the [applicant’s building] were provided.[10]
[10] See folios 86-90 of Tribunal file 1603017.
Findings and reasons
Applicant’s identity
On the basis of the certified copies of their Egyptian passports provided to the Department, and noting the delegate’s findings in this regard, the Tribunal accepts that [the first applicant] and her daughter are citizens of Egypt as claimed.[11] The Tribunal accepts that Egypt is their country of nationality for Convention purposes and is their ‘receiving country’ for complementary protection purposes.
[11] See folios 104-157 of the first Departmental file.
The issue in this case is whether there is a real chance [the first applicant] and her daughter, [the second applicant], will suffer persecution involving serious harm as a consequence of their religion, should they return to Egypt, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Egypt, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Assessment of claims
Background
At the hearing [Ms A] indicated that her husband, son and son-in-law remain in Egypt. She said her husband and son are living with her brother in the Shoubra area of Cairo. [The first applicant] indicated that her husband is living with his parents and brother in [District 1,] Cairo. [Ms A] indicated that her husband, who is now [age] years of age, had worked as [Occupation 1] in [a company], but is now retired and receives a pension. [The first applicant] indicated that her husband, who had been working as a [Occupation 2], is now working on a [casual basis]. Her husband, [Mr C] (who the Tribunal spoke to by phone from Cairo) confirmed this. He said he used to work as a [Occupation 2] but he could not continue to work there because of the problems they faced. He said he thought he could start work with his father, who was also a [Occupation 2], but his father [had specified medical condition] and became unwell. He commented that it was difficult to get another job so he took [Occupation 3] because it was available.
Father [B] commented that the Coptic orthodox church does not support cases unless the church is satisfied that they are genuine. He indicated that he had been told that the church is supporting the cases of [Ms A] and [the first applicant] and her daughter. He said the country information indicates that attacks on churches and individual discrimination against Coptic Christians is still occurring. He said the church supports their cases because they have been kicked out of their homes, had been followed and gun shots had been fired, and they can’t get legal redress to get ownership of their own homes. He commented that the church has seen cases where the courts sign off in favour of the complainant, but they can’t get the court decision executed or enforced. He noted that the applicants have been in Australia for five years now, [the first applicant]’s daughter has not seen her father in that time, [the first applicant] is struggling to support herself and her daughter, and that she and her daughter are disconnected from her husband.
Claims regarding discrimination on religious grounds
The Tribunal accepts that the applicants are followers of the Coptic Orthodox Christian religion. [The first applicant] has claimed that she suffered discrimination because of her religion including regular abuse from Muslim students while at school and university, abuse on the streets because she was not veiled, and being insulted, abused, and threatened when she attended church with other Coptic Christians. It is claimed that due to the strong foothold of Muslim extremists throughout Egypt and the daily intimidation of Copts that systematically occurs throughout the country, she holds a well-founded fear of returning to Egypt.
As discussed with [the first applicant] at the hearing, the Tribunal notes that despite her claims of discrimination at school, she was able to complete her schooling and obtain a [qualification] in [specified discipline]. The Tribunal put to [the first applicant] that her family members have achieved a high level of academic qualifications. She commented that while they had faced discrimination it had not stopped their lives and they were living with it. She indicated that she had not worked at all in Egypt. The Tribunal queried her that her mother had indicated in her written statement that her life was peaceful over the period from 1985-2001. [The first applicant] replied that there were some problems but they learnt to live with it and it did not cause them any harm. She said that it was from 2010 that the situation became dangerous and frightening for them.
The Tribunal also discussed with the applicants the following information drawn from DFAT’s most recent Country Information Report on Egypt:[12]
[12] DFAT Country Information Report, Egypt, sections 2.7, 2.27-2.31, 3.17-3.24, and 3.29-3.33.
- 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.
·Coptic Christians make up between 8-10 per cents of Egypt’s population of 95 million people (that is, approximately 8-9 million people). Sunni Muslims comprise approximately 90 per cent of the population.
- There are reportedly approximately 2,800 registered churches throughout Egypt (compared to nearly 110,000 mosques).
- 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 that do not apply to Muslims.
·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.
·Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. High-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
- The majority of 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.
- 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.
- 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.
- 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.
- Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. However, lower-level Church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims.
- DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.
- 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 (see ‘Reconciliation Committees’).
- 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.
- 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.
- 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 ongoing protests such as those experienced in 2011 and 2013 have declined considerably.
- Since 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 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.
- 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.

[The first applicant] indicated that in general the situation has improved since President Sisi came to power, but added that individual cases, like theirs, continue to happen, and the authorities had not taken a strong stand in their case. She added that in recent years a Christian pharmacist had been slaughtered in their area and a priest had been killed. She said there had been incidents of kidnaping and no action had been taken and that the church advises members to avoid certain streets.
Having considered the applicants’ evidence and relevant country information the Tribunal accepts that there is societal and some official discrimination against Christians in Egypt. Noting the level of academic achievement by the applicants and their family members and that they have achieved [favourable occupations], however, and noting DFAT’s advice that most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity; and DFAT’s assessment 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, the Tribunal finds that the level of general discrimination faced by the applicants prior to 2011 did not, of itself, amount to persecution involving serious harm. In reaching this conclusion the Tribunal has had regard to the (non-exhaustive) examples of serious harm set out at in s.91R(2) of the Act.
Claims that the applicants were targeted for persecution in relation to their [property]
The applicants’ current representative claims that that the applicants ([the first applicant] and her daughter [the second applicant] and [Ms A]) hold a well-founded fear of returning to Egypt due to the strong foothold of Muslim extremists throughout Egypt and the daily intimidation of Copts that systematically occurs throughout the country. The applicants’ current representative states that the primary claim enlivening Australia’s protection obligations is the difficulties surrounding the property [dispute], rather than the previous claims regarding pending legal [charges.] The Tribunal accepts that the applicants’ revised (undated) statutory declarations provided to the Tribunal in January 2018 represent the facts of the persecution that they claimed to have suffered and wish the Tribunal to consider. [Ms A] confirmed at the hearing that there is no legal action pending against her or her family. In considering this matter the Tribunal notes that [Ms A] states that, as Coptic Christians, they have experienced discrimination in their everyday lives, but comments that the targeted persecution they suffered was with regards to the land she purchased with her husband in [year] and subsequently built [their] residence on. She claims that the family suffered hostility, harassment and persecution from neighbouring Muslim residents, due to the close proximity of their home to two mosques, and the desire of the owners of the mosque located closest to their [home] to purchase their property for well-below the market rate. Noting the results of the discreet site visit undertaken (no personal or other inquiries were made as part of this visit) the Tribunal accepts that the property remains uninhabited (noting the appearance of the building entrance from the photo taken) and that there are numerous mosques in the vicinity of the address.
The Tribunal accepts the evidence that the family experienced hostility, harassment, abuse and threats from neighbouring residents in an attempt to force them to sell their property for well-below the market rate. The Tribunal accepts that as the title was in the names of [Ms A] and [the first applicant] they became targets of the hostility, threats and intimidation. The Tribunal accepts the evidence that there was an incident where a neighbour parked his car in their garage and refused to move it, became abusive and threatening and fired a shot in the air when the confrontation escalated. The Tribunal accepts the evidence, including that given by phone from Egypt by [the first applicant]’s husband, [Mr C], that [Mr C] had run his [business] from [their building] for about two and a half years [but] had to abandon this because he and his customers were harassed by local residents. The Tribunal accepts his evidence that extremists [took steps] to cause problems and to harass him so he would go and fight with them.
The Tribunal accepts that the situation was particularly bad during the period when there was a general breakdown in law and order nation-wide following the 2011 Revolution, which 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. The Tribunal notes the country information indicates the security situation has improved since the Sisi government came to power in May 2014 due to the new government’s strong emphasis on internal security and that general law and order largely was restored throughout Egypt. The Tribunal asked the applicants whether, given the improved security outlook, and noting that the issues they faced seem to be related to a particular location in Cairo where there is a high proportion of more extremist Muslims and few Christians, they could sell the property on the open market and relocate to another, safer, area within Cairo. [Ms A] commented that President Sisi makes statements in front of the media but they had to leave their house and her husband and son have had to move in with his brother and her son-in-law has moved in to a small apartment with his father. She said they would have nowhere to go as they put all their savings into that house and now they can’t sell it. She said that local residents had started a rumour that the house belongs to the neighbouring mosque and if she returns to Egypt they will seek to force her to sign over the property to them at a great loss. She said it is easy for them to punish her, hit her, or kidnap her or the children. She commented that she fears that a case will be fabricated against them. She also said that she fears for her husband and son, commenting that the people who want their property had made things difficult for her son at University and consequently he had stopped attending. Consistent with the representative’s statement she indicated that her son-in-law had tried to lodge a complaint with police but police would not receive this, telling him that any complaint must be lodged by the owner personally.
[Mr C] said they cannot sell the house as people know it has a problem. He said it has been left for a long time and to sell it they would have to be living there but they are afraid to return to that area as they do not know what would happen to them. He referred to a Christian pharmacist who had been killed in the area. The Tribunal queried Abdel[Mr C] why these people had not simply taken the house over since it had been left unoccupied. He replied that he cannot answer that question but added that if these people come into the house the police might come because his wife and her mother-in-law have ownership. He indicated that they want to intimidate his wife and mother-in-law to sign over the contract so it is theirs legally.
[The first applicant] said that if they want to move they have to sell the house, but they can’t because there is no offer to buy it. She added that there would also be no guarantee that they would not face the same problems in a new house. She said if they returned she fears that a group would come, not to talk to them but to scare and intimidate them into selling, and when they sought to go out they would be harassed, as it is easy for these people to do anything they want from verbal threats, including the threat of kidnap, to threatening them with weapons. She said they would have to stay in the house. She commented that when her daughter was [born] she did not feel she could take her out because she would see people outside who she feared would harm them. She said it was not just discrimination but people were armed and there was nothing to prevent these people harming her or her daughter. She referred to the risk of kidnapping and commented that the church itself is facing harm and is not able to defend itself. She said her daughter (who is now [age] year old) is afraid to return to Egypt. She indicated that her husband had been harassed and intimidated by these people who followed him everywhere trying to intimidate him to get to her and her mother.
[Ms A] commented that before she came to Australia she took a lot of leave from her employment because she was afraid to leave the house due to the level of abuse and intimidation she faced.
The representative submitted that the family face the risk that they will be presented with an ultimatum to transfer the title of the property and that this could involve the use of excessive force. He said they can’t walk away as the property is in the names of [Ms A] and [the first applicant]. He indicated that they have the support of the Coptic Orthodox church in Egypt and Australia who say it is not safe for them to return and they have been apart from their husbands and family for a long time (five years now) because of their fears for their safety.
In considering these matters the Tribunal has also considered advice from the United Kingdom’s Home Office (UKHO) on the circumstances facing Christians in Egypt. In its July 2017 Policy and Information Note, the UKHO commented that the political, security and social situation for Christians improved up to 2015, however, during 2016 and early 2017 there has been an increase in non-state sectarian violence against Christians. This includes attacks by Daesh (Islamic state), which has stated its intent to target Christians and claimed responsibility for high profile bombings in Cairo, Alexandria and Tanta in December 2016 and April 2017, resulting in scores of casualties. The report states that Christians in general are not at risk of persecution or serious harm by non-state actors in urban areas, including in Cairo and Alexandria, but Christians in some rural or poorer areas, particularly those with strong extremist presence, continue to face discrimination and ill-treatment by non-state actors that may amount to persecution.[13] The Tribunal also notes the submission by the representative in November 2018 regarding a further mass-casualty attack in the Minya region for which Islamic State claimed responsibility.
[13] UK Home Office, Country Policy and Information Note, Egypt: Christians, July 2017, sections 1.1-3.1.5.
The Tribunal accepts that [the first applicant] and her family members abandoned their home because they feared for their safety due to a sustained period of abuse, harassment, threats and intimidation by neighbouring Muslim residents, designed to intimidate them into signing over the title deed to their property, which is in [Ms A] and [the first applicant]’s names, at a price that is well below market value. The Tribunal accepts the evidence that the campaign of intimidation is such that they cannot sell the house because there is no-one who would buy it at a fair market price. The Tribunal also accepts that it is likely that the campaign of intimidation would recommence should the applicants return to Egypt and seek to reoccupy and/or sell the property. The Tribunal cannot rule out the possibility that this could also involve serious harm in the form of physical harm or kidnap. In this regard the Tribunal has also noted DFAT’s assessment that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault.[14] The Tribunal also notes DFAT’s comment that it is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam[15] and that the UKHO report cites the United States Commission on International Religious Freedom (USCIRF) Annual Report for 2017 as observing that ’while the number of incidents of kidnappings for ransom and extortion of Christians have decreased in recent years, they continue in parts of the country, particularly in Upper Egypt’.[16]
[14] DFAT Country Information Report, Egypt, 19 May 2017, section 3.79.
[15] DFAT Country Information Report, Egypt, 19 May 2017, section 3.8.
[16] UK Home Office, Country Policy and Information Note, Egypt: Christians, July 2017, section 7.3.10.
Considering the applicants circumstances cumulatively, the Tribunal finds that there is a real chance that they will suffer persecution involving serious harm, from extremist Muslims, if they return to their home area in Cairo Egypt.
The Tribunal is satisfied that the real chance of serious harm the applicants will face if they return to their home area in Cairo will be a result of systematic and discriminatory conduct in that it will be done to them selectively and intentionally. The Tribunal finds that the essential and significant reason for the serious harm the applicants face is their Coptic Orthodox Christian faith.
Availability of State protection
In this case, the harm that the applicants fear from extremist Muslims is from non-state agents and [the first applicant] claims that the Egyptian authorities cannot and will not protect her and her daughter from that harm.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
In considering the level of state protection available to the applicants the Tribunal has had regard to DFAT advice which indicates that[17]:
[17] DFAT Country Information Report, Egypt, 19 May 2017, sections2.16, 3.23-3.24, 3.31-3.33, 5.4-5.18 and 5.21-5.23.
·Corruption is widespread throughout Egypt. The payment of baksheesh, or tips, in order to receive basic services is part of everyday life. A culture of nepotism and favouritism negatively affects Egypt’s economy and investment climate.
·A weak legal framework and a widespread culture of corruption leave businesses reliant on strong connections and the use of intermediaries to operate, and well-connected businesses enjoy privileged treatment.
·Legislation is enforced unevenly, leading government officials to act with impunity. Facilitation payments and gifts are common, despite being illegal.
·The police do not enjoy the same high public esteem as the Egyptian military. Professionalism varies and the police’s ability to deal with evidence is widely mistrusted. The effectiveness of the police in general is limited by a shortage of equipment, a lack of training, low pay, and poor investigative skills.
·Calls for investigations into incidents of police brutality are common. In April 2015, the Ministry of Interior called on citizens to report police abuses. It announced in February 2017 the formation of committees to evaluate police officers on ethics, behaviour and psychological condition. Credible human rights organisations (including Amnesty International, Human Rights Watch and Freedom House) have reported that impunity for the police (and other security forces) remains an ongoing problem.
·Some Christians. Particularly in rural areas, may face difficulty in obtaining justice through legal means.
·Individual judges can be subjected to community pressure to rule in accordance with dominant social and political mores, particularly in cases where religion is a factor. DFAT is aware of instances in Upper Egypt where conservative Muslim lawyers and/or community leaders have demonstrated outside courtrooms hearing defamation of religion cases, implicitly threatening community unrest in the event of an unsatisfactory ruling.
·Reconciliation committees are a form of traditional justice that authorities use frequently to resolve communal incidents between Muslims and Christians. The reconciliation committee process typically involves victims of crimes accepting a negotiated apology and compensation and abandoning any claim to legal remedy. Authorities have often seen the application of reconciliation committees as being more likely to resolve issues and prevent revenge attacks and vendettas, particularly in rural and poorer areas such as Upper Egypt. Authorities often pressure victims of crimes to abandon criminal complaints and accept the outcome of reconciliation committees. In most cases, the Prosecutor-General will accept the outcome of reconciliation committees and close the relevant legal files.
·In the majority of cases involving violence by Muslims against Christians, the compensation offered by the state authorities or the Muslim parties is insufficient to meet the cost of the damage caused. In serious cases where one party is required to relocate to avoid ongoing violence, the Christian party is the one generally moved.
·Christian religious authorities are strongly opposed to the practice of reconciliation committees, arguing that the practice undermines the protection of the power of the law for all Egyptians. They have consistently called on state authorities to intervene to ensure that judicial processes are followed, but with limited success.
·DFAT assesses that Christians involved in communal violence with Muslims are unlikely to receive a fair outcome through a reconciliation committee process. However, the negotiated settlement of the reconciliation committee process may provide some guarantee against future violence.
·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.
Noting the comments regarding general levels of corruption; the weak legal framework; the assessment that effectiveness of the police in general is limited by a shortage of equipment, a lack of training, low pay, and poor investigative skills; DFAT’s assessment that Christians involved in communal violence with Muslims are unlikely to receive a fair outcome through a reconciliation committee process; and lower-level Church officials’ questioning of the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims, the Tribunal finds that the level of protection available to the applicants, as Coptic orthodox Christians, from the Egyptian authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Based on the available country information, the Tribunal finds that [the first applicant] and her daughter would not be able to avail themselves of effective state protection against the harm they face. It follows that the Tribunal finds [the first applicant] and her daughter face a real chance of persecution for reasons of their religion if they were to return to their home region in Cairo, now or in the reasonably foreseeable future.
Relocation

In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
In considering whether it is reasonable, in the sense of practicable, for the applicants to relocate to another area of Egypt where the risk of serious harm to them, as Coptic Orthodox Christians, might be lower than the real risk they face in their home area in Cairo, the Tribunal has considered advice from the UKHO that relocation in Egypt is sometimes possible to an urban area where religious extremists do not have a strong presence, such as Cairo.[18] In this case, however, the applicants are from Cairo and [the first applicant] has been particularly targeted because of the dispute with local religious extremists regarding her home there. The Tribunal accepts that this dispute is likely to be ongoing should the applicants return to Egypt and considers that as a consequence of the dispute they are likely to be targeted for harm wherever they reside in Egypt. The Tribunal finds that, given the relevant country information, the applicants are likely to be less safe from the serious harm they face if they were to relocate outside of Cairo than if they remained living there. The Tribunal concludes, therefore, that in the particular circumstances of this case, relocation is not an option to remove the real chance of serious harm that the applicants face.
[18] UK Home Office, Country Policy and Information Note, Egypt: Christians, section 2.4.
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. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Paul Windsor

Member

[2019] AATA 1873

31 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction