1606818 (Refugee)

[2021] AATA 573

1606818 (Refugee) [2021] AATA 573 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606818

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Damian Creedon

DATE:19 January 2021

PLACE OF DECISION:  Perth

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 19 January 2021 at 4:03pm

CATCHWORDS

REFUGEE – protection visa – Egypt – religion – Coptic Christian – particular social group – single Coptic Christian women – victim of harassment and threats – pressured to convert to Islam – fear of kidnapping – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Egypt, applied for the visa on 2 April 2014 and the delegate refused to grant the visa on 29 April 2016.  The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

3. The applicant appeared before the Tribunal on 12 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr [A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant gave evidence broadly conforming to the written claims outlined in her visa application.  Where relevant the applicant’s and Mr [A]’s evidence will be referred to by the Tribunal in its analysis below.

   RELEVANT LAW

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

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of her 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 her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   Complementary protection criterion

9. If a person is found not to meet the refugee criterion in s.36(2)(a), she or she may nevertheless meet the criteria for the grant of a protection visa if she 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 she or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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

11. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Background:

12. The applicant is a [age]-year-old woman from [City 1] in the Arab Republic of Egypt.

13. The applicant is presently married and has been married on at least two previous occasions.  At least one of the applicant’s previous marriages has been annulled by the Coptic Christian Church.

14. The applicant arrived in Australia [in] January 2014 holding a Visitor visa granted on 22 July 2013.  She lodged an application for a Protection Visa on 2 April 2014.

    Claims:

15. In her application for a protection visa the applicant made the following written claims:[1]

    [1] See the applicant’s Statutory Declaration made on 11 March 2014, Departmental File folios 32 – 36.

    a.The applicant claims that she was born into a Christian family and has been a Coptic Christian ‘all [her] life.  She claims to be a ‘devout’ Christian.

    b.She claims that growing up in Egypt as a Coptic Christian she has ‘always faced discrimination and persecution’; she claims:

    As a child I was always taunted by Muslim teachers and classmates for being different.

    c.The applicant claims that the school system in Egypt ‘brainwashed and manipulated’ children to convert to Islam, however she remained ‘steadfast’ in her faith.

    d.She states that, at about the age of 17, while completing Year 12 at High School, she followed one of her girlfriends, who had been brainwashed ‘by Muslims’, to a local Mosque where she was to convert; the applicant claims that she ‘convinced’ her girlfriend to remain a Christian.

    e.The applicant states that she studied [Discipline 1] at University, but claims that the discrimination against Christians at University was ‘more systematic’. She states that she a ‘Muslim lecturer’ failed her in a subject three times because she refused to take off her ‘necklace cross’; she states:

    Putting up with discrimination and persecution that society imposed on me as a Christian became my defense [sic] mechanism and I learned throughout my life in Egypt to brush off derogatory comments and discriminatory behavior [sic] towards me

    f.The applicant states that she married her first husband in May 2007 and in September of that year came to reside in Australia so that her husband could further his studies.

    g.She states that the couple’s plan for her (then) husband to apply to become a skilled migrant to not come to pass and that the couple returned to Egypt in February 2009.

    h.The applicant states that the coupled lived in an apartment in [City 1], until her husband left her ‘in or about’ September 2013.

    i.After that event, the applicant states that she lived alone at the matrimonial home.  She states that her parents spend ‘most of their time’ in Australia; that two of her brothers are Australian citizens and that a third brother lives in [Country 1].

    j.She states that after her husband left her, her Muslim neighbours in her building put pressure on her to convert; she claims that they kept suggesting that she should marry a Muslim man and convert, and she had to ‘disconnect’ herself from them.  She states:

    Living on my own in Egypt and given the political situation and the unrest made me an easy target and very vulnerable. On many occasions people would try to take advantage of me given my situation as a single female Coptic Christian.

    k.The applicant claims that, although Coptic Christians had ‘always’ been treated as second-class citizens by Muslims in Egypt, the Government had protected them ‘to some extent’; she claims, however, that the situation for Christians changed ‘drastically’ after the fall of Hosni Mubarak in 2011.

    l.The applicant states that Muslim Brotherhood candidate Mursi came to power and ‘unleashed fanatic Muslims to do what they liked to Christians’.  She states that ‘in the past two years’ (i.e. to March 2014) many churches have been burned and Christians killed.

    m.The applicant claims that ‘in recent months’ (to March 2014) she has been subjected to ‘severe mistreatment and persecution’ by Muslims and feels that Egypt is no longer safe for her; she claims that ‘every time’ she has tried to report an incident to the police, they disregarded her claims and did nothing.

    n.The applicant provides the following examples of mistreatment she claims to have suffered:

    i.In or around October 2013 her dog was shot in front of her by two men wearing ‘ghalabis’ and with ‘long beards’. The perpetrators told her that if she did not convert to Islam and wear a hijab she would also be shot; she claims that she did not dare make a formal Police complaint because she knew that, as a Christian woman, they would not listen to her.

    ii.A ‘few days later’ she found a threatening note attached to her car; the note stated:

    You Kaffra (Infidel), remove the cross from the car or we will set you and your car alight.

    iii.‘Three weeks later’ she found her car tyres slashed, its windows smashed and a red substance resembling blood splashed onto her car, with another threatening message attached stating:

    The Kaffra.

    iv.After this event she stayed with a friend for ‘a week’, and when she returned to her building, three bearded men started walking towards her and stole her bag and belongings and started beating her until she fell to the ground. She claims that the men were telling her that she must ‘convert’; and that one of the men pulled out a gun to prevent bystanders from assisting.  She states:

    I made a complaint to the [Police Station] on the same day but nothing came out of it.

    v.She states that she was too afraid to leave the house; after three days at home, a delivery man told her that she has been ‘warned’ and that she must convert.

    o.Following these incidents that applicant stated that she decided to use her Visitor visa to come to Australia.

    p.She now has nightmares and panic attacks. She fears being subjected to further threats, discrimination and suffering in Egypt and that she cannot relocate because she will be recognised as a Christian no matter where she lives; she states:

    The persecution of Christians has become a daily event throughout the entire country and is not limited to one area or city.

    Evidence:

16. The Tribunal has before it a range of material, including, relevantly:

    a.The applicant’s protection visa application forms (visa application);

    b.The applicant’s identity documents being a copy of her passport;

    c.The delegate’s protection visa decision record dated 29 April 2016 (delegate’s decision record); and

    d.The review application form which included a copy of the delegate’s decision record.

17. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on Egypt, published on 17 June 2019 (DFAT Report) and a range of extraneous materials in respect of the situation in Egypt as it pertains to the applicant.

    Country of reference / receiving country:

18. The applicant claims to be an Egyptian national.  Based on the copy of her passport provided by the applicant prior to the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Egypt is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Hearing:

    The applicant

19. In giving her oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.  Overall, the Tribunal considers that the applicant provided a consistent, coherent and plausible account of her circumstances. 

20. The applicant stated in evidence that her visa application forms were true and correct and that she did not wish to change or add anything to them.  The applicant’s evidence closely followed that outlined in her statutory declaration and was consistent with it.  The Tribunal did not form the view that the applicant’s oral evidence was a mere recitation of her statutory declaration; when pressed to provide further or better particulars in respect of her evidence the applicant did so consistently and cogently.

21. The applicant stated that her immediate family are no longer resident in Egypt; her parents and two of her brothers are Australian citizens and resident here and her third brother is a citizen of [Country 1] and resident there.

22. The applicant stated that after high school she completed a bachelor’s degree in [Discipline 1]  in Egypt in 1996.  She stated that, save for a period of volunteer work while she was a student, she did not work in Egypt prior to coming to Australia.

23. The applicant stated that she is presently married and had previously been married in Egypt.  When pressed by the Tribunal as to the details of her marriages the applicant stated that her first marriage commenced shortly after her graduation from university, but that it had been annulled according to her Church’s canon law.[2]  The applicant stated that her second marriage commenced in 2007 and that she was divorced according to Egyptian civil law in mid-2013, albeit that couple’s relationship had broken down sometime earlier.  The applicant’s present marriage, to an Australian citizen, commenced [in] December 2018.

    [2] As her first marriage had been annulled the applicant did not initially include it within the definition of a ‘previous marriage’ as, under canon law, it is taken to have never occurred.  This definitional issue was resolved during the course of the hearing and the Tribunal is satisfied that the applicant did not intend to provide misleading information as to her marital status on this account.

24. When asked by the Tribunal why it was that she feared returning to Egypt the applicant stated that she is of the Coptic Christian faith, that she was a devout parishioner of her local Church in [City 1] and that she had been the subject of persistent persecution on account of her faith and as a single woman in Egypt.

25. The Tribunal asked the applicant about her experience growing up as a Coptic Christian in Egypt.  The applicant stated that she had always been aware of a division between Christians and Muslims in Egypt and that she had been the victim of regular harassment by Muslim men.  When pressed by the Tribunal the applicant stated to the effect that she had been pressured to convert to Islam on numerous occasions while at school and at university.  She recounted in oral evidence the examples given in her statutory declaration, in particular the incidents described at paras [15.d] and [15.e] hereof, providing the Tribunal with further and better particulars of the incidents and answering the Tribunal’s questions in a manner such that the Tribunal was persuaded as to the genuineness of her experiences.

26. The applicant stated that after her marriage in 2007 she and her (then) husband spent two years in Australia while her (then) husband was a student here.  The applicant stated that when the couple returned to Egypt their marriage became strained, resulting ultimately in their divorce in 2013.  From this time, the applicant stated her experiences of harassment changed once it was realised in her local community that she had divorced her (then) husband.  When pressed by the Tribunal, the applicant stated that her (then) husband had worked as an [occupation] and that he was regularly collected by a car sent by his employer to their residential address.  The applicant stated that eventually, when it was noticed by her neighbours that he was no longer being collected, it became apparent to her local community that she was ‘divorced and alone’.

27. Her evidence is that, once it was apparent that she was a single female she experienced significant and persistent harassment on account of her religion.  The applicant stated that, as a single woman, she became afraid to leave her residence and her building for fear of harassment and persecution.

28. The Tribunal pressed the applicant to describe in detail the nature of the harassment she received.  The applicant stated that she had trained her [dog] to leave the building for its ablutions and to then return inside and that it had done this unmolested for some time.  The applicant stated that on the particular occasion in question her dog exited the building as usual but did not return.  She stated that she went downstairs to see where it was.  She stated that she saw three men, all of whom were bearded, two of whom were wearing ‘robes’ and one in jeans.  She stated that the men had hold of her dog, that they asked her to confirm that it was hers, and that, upon her confirmation, one of the men shot her dog.  She said that the man said to her words to the effect of:

    If you don’t put a hijab on and become a Muslim, we’ll do the same thing to you.

29. When pressed by the Tribunal as to the nature of this incident the applicant stated that dogs are considered ‘dirty animals’ by Muslims and that, accordingly, Christians would often be identified in Egypt through dog ownership.  When further pressed by the Tribunal the applicant stated that it was not mere happenstance that her dog had been seized by the three men, but rather that her dog was well known in her building and her street and that she had been targeted for terrorising by the three men as she was now, alone, Christian, female and ‘vulnerable’.  The applicant’s emotion when recalling this incident was evident to the Tribunal from her demeanour while giving this evidence.

30. The applicant stated to the effect that after that event she lived in fear of being ‘kidnapped’ and forced to convert to Islam as she was aware that this had happened in her neighbourhood.  She stated that, as a single woman, she was particularly vulnerable to such events.  The applicant described herself as an ‘easy target’ because she was alone.  When asked whether she could take her complaints to the police the applicant stated that it would be of ‘no use’ as they were themselves Muslims.

31. When pressed by the Tribunal as to the risk of her being kidnapped, the applicant stated that she felt that she had been the victim of an attempted kidnapping.  When further pressed by the Tribunal the applicant stated that after the incident with her dog she had travelled to stay with her maternal aunt for ‘a week’.  She stated that when she returned to her home she was ‘dropped’ in the street adjacent to her building.  She stated that she saw a group of ‘bearded’ ‘robed’ men outside of her building who came towards her when they say her.  She stated that she tried to avoid them but that the verbally harassed her to convert to Islam and ‘wear a scarf’.  She stated that had her neighbours not assisted her at this time she believes she would have been kidnapped by the men.

1. The Tribunal put to the applicant that the incidents she described were now some years ago and asked what she feared in returning to Egypt in 2021.  The applicant stated to the effect that her neighbours are ‘the same’ and that even if the government had changed ‘a bit’ her neighbours and their manner of thinking had not.  In support of her contention the applicant then referred the Tribunal to the following news article from the Daily Mail of 18 December 2020 as evidence of her contentions in this regard:

   [Headline:] Men who dragged a 70-year-old woman through her village naked because her son was rumoured to be having an affair with a Muslim woman are acquitted by a court in Egypt.[3]

   [3] (accessed 17 January 2021).

2. The article includes the following extracts:

   Three men who stripped and dragged an elderly Christian woman through an Egyptian village over rumours that her son was having an affair with a Muslim woman have been acquitted by a court.

   Soad Thabet, now 74, was the victim of the sectarian attack in 2016 which saw her paraded naked by a mob of vigilantes in Al-Karm.

   The attack was accompanied by the torching of Coptic Christian homes and villagers angrily calling for the religious minority to be expelled.

   The three defendants - a father and his two sons - were acquitted after a re-trial where they were initially sentenced to 10 years in prison.

   …

   Leading rights group Egyptian Initiative for Personal Rights (EIPR) condemned the verdict in a statement urging the public prosecution to lodge an appeal.

   'Perpetrators of sectarian attacks must be held accountable for their actions in order to avoid their repetition,' the watchdog said.

   President Abdel Fattah al-Sisi lambasted the violence at the time after it turned into a national controversy, describing it as 'unacceptable'.

   Egypt's Coptic Christians, the largest religious minority in the Middle East, make up 10 to 15 percent of the country's 100million population. 

   Christians have long complained of discrimination in Egypt, and in recent years ISIS has also targeted churches, killing dozens.

   Mr [A]

3. Prior to the hearing Mr [A] provided the Tribunal with a statutory declaration made on 7 January 2021.  In that statutory declaration Mr [A] stated (relevantly):

   1. The [applicant] is my wife and we have been married since December 2018.

   2. I work as a full-time [occupation].

   3. My wife often talks about her difficult time in Egypt and especially after her family migrated to Australia and [Country 1].  [My wife] has three brothers, two of whom are Australian citizens.  Her other brother lives in [Country 1].  Her parents are also Australian permanent residents, and she has no immediate family left in Egypt.  I know that my wife fears [for] her safety in Egypt as she has been subjected to persecution due to her strong Christian beliefs.  I am very concerned as well and have thought long and hard about accompanying her if she was forced to return to Egypt.  If would be almost impossible under current circumstances for me to travel abroad.  I [suffer from several medical conditions] which put me at a high risk of contracting COVID-19.

4. In giving his oral evidence, Mr [A] confirmed the information outlined in his statutory declaration and appeared to the Tribunal to do so honestly and truthfully. 

   Other evidence

5. In support of her application the applicant provided a number of documents and other materials.  Among those was a reference from her Parish Priest, Fr [B] of [Church 1].  Fr [B]’s reference includes the following observation (reproduced as written):

   [The applicant] is an active Church member and a volunteer in many service fields since she was in Egypt as well as in here.

   Country information:

6. The Tribunal has considered whether the applicant would face harm in Egypt because of her religion, as well as other reasons.

7. DFAT’s most recent report on Egypt provides the following general information in relation to Coptic Christians:

   3.31 Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast 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 and other cities and some villages are sometimes regarded or described as ‘Christian areas’, but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.

   3.32 Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely than Muslim women to leave their hair uncovered. Christian women living in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab. Christians tend to have identifiable names. Some Christians tattoo small crosses on the inside of their wrists or between their thumb and forefinger as a mark of their identity, often following visits to monasteries or holy sites. Not all Christians have these tattoos and it is not a mandatory religious practice.

   3.33 There are no legal barriers to prevent Christians from being visible 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.[4]

   [4] DFAT Report.

8. With regard to the 2011 Egyptian Revolution and its aftermath, DFAT stated:

   2.38 Egypt experienced a major decline in law and order in the wake of the 2011 Revolution. A sizeable increase in violent crime, civil unrest and terrorist attacks at this time affected all Egyptians. There was a significant growth in communal violence, which impacted particularly on the Christian community.

   …

   3.34 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. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi’s public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians (see Security Situation). Local sources report that 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.

   …

   3.36 DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means (see Judiciary). Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities.[5]

   [5] Ibid.

9. In relation to recent terrorist attacks on Christians and communal violence in Egypt, DFAT provided the following information:

   3.22 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. The large-scale anti-Christian violence that occurred in 2011 and 2013 notwithstanding (see Security Situation), high-profile incidents in which people are killed or churches attacked are not a frequent occurrence.

   3.23 A general breakdown in law and order nationwide occurred in the years following the 2011 Revolution, peaking 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. 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. 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. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years.

   3.24 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. In one particularly high profile incident 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.

   3.25 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. In December 2018, the government announced it would form a higher committee tasked with developing a general strategy to prevent and confront communal incidents. While acknowledging Sisi’s personal engagement on the issue, Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.

   3.26 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.

10. The Tribunal also notes the following new article from Crux, a catholic online newspaper, of 16 October 2020:

    [Headline:] Latest attack on Coptic Christians highlights religious violence in Egypt.[6]

    [6] (accessed 17 January 2021).

11. The article includes the following extracts:

    On October 5, 2020, a mob of Islamic extremists attacked the homes of Coptic Christians in the Egyptian village of Dabous, located in the Upper Egypt region of Minya.

    According to International Christian Concern, two young Muslim adults beat up a ten-year old Coptic Christian child. Some Christian adults retaliated, triggering the attack the next day.

    …

    Christians suffer discrimination from the Muslim majority, and often find it hard to find jobs, get a good education, and participate in the social life of the country. In addition, the community is often the target of Islamist violence.

    The ICC’s Regional Manager for the Middle East, Claire Evans, says the Egyptian authorities “seek to guarantee silence, not safety.”

    “The government under [President Abdel Fattah] al-Sisi has institutionalized a culture of silence by punishing anyone who speaks freely about the challenges they face. The government has expended so much energy demonstrating to the West how they are promoting religious freedom, but they have not taken concrete steps to protect religious freedom,” she told Crux.

    Evans said it was necessary for Christians to speak up and speak out.

    “Being silent about these issues re-victimizes the victims. In the face of an assault, such as what occurred in Dabous, we need to name it for what it is. And we need to process what that means. It is only by looking directly at religious freedom violations that religious freedom can be protected,” she said.

12. The Tribunal also accepts that terrorist acts have been perpetrated by extremist groups who target the Christian community in Egypt. The Tribunal finds, however, that the attacks although targeted are sporadic and isolated in nature. The Tribunal also notes that the Sisi government has shown significant support for the Coptic community in the face of these attacks.[7]  Reports confirm that the Coptic Orthodox Church has expressed confidence in the efforts of the Egyptian state in protecting Copts against sectarian violence.  For example, in March 2017, the Coptic Pope said that Copts face problems but they are minor and should be dealt with case by case.[8]  He said that the state is doing its best to secure churches, and that he could ask no more of the government in this regard.[9]  The Tribunal accepts that Islamic State in Egypt is increasingly targeting Coptic Christians particularly in far-off Upper Egypt.  The Tribunal is not however satisfied that all Coptic Christians are at risk of being targeted by Muslims or the authorities in Egypt.  The Tribunal finds that the current government is attempting to improve the security situation for Copts living in Egypt.  The Tribunal finds that Coptic Christians, without more, do not face a real chance or a real risk of facing serious or significant harm in Egypt at the hands of terrorist organisations or as a consequence of sectarian violence.  There is no persuasive evidence before the Tribunal that would suggest that Coptic Christians are denied the right to practise their religion by Egyptian law or government practice.

    [7] See ‘Are Copts at risk because of their Sisi support?’, The New Arab, 14 March 2017, CXC9040663760; 2015 Report on International Religious Freedom – Egypt’, US Department of State, 10 August 2016, p.1, OGD95BE926698; Analysis: Egyptians see failed security in church attacks’, CNN, 09 April 2017, CXC9040665529; and ‘Egypt govt to compensate victims of Minya attack on Coptic Christians’, Ahram Online, 27 May 2017, CXC9040668195.

    [8] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474

    [9] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474

    Assessment of Claims and evidence, and findings:

13. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

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

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

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

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

16. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

17. Notwithstanding its conclusions as to the country information, the Tribunal has taken the applicant’s particular circumstances into account in making its assessment. The Tribunal accepts that she resided in a building in [City 1] and that the majority of her near neighbours were Muslims.  Once the fact of her divorce in 2013 became common knowledge among her neighbours the applicant appears to have genuinely felt vulnerable, viewing her neighbours and her local community as a threat to her safety. The Tribunal is prepared to accept that the applicant was subjected to harassment and acts of discrimination, including verbal abuse and taunts due to her Christian faith on a reasonably regular basis in her neighbourhood as outlined in her statutory declaration and in her oral evidence – her accounts were coherent and plausible, and they do not run counter to the country information available to the Tribunal.    

1. The Tribunal notes that none of the applicant’s immediate family are resident in Egypt (the applicant’s evidence is that her only remaining relative there in 2013, her maternal aunt with whom she stayed after the attack on her dog, has since moved out of the country).  The Tribunal also accepts that, for health reasons, the applicant’s husband would be unlikely to be able to accompany her to Egypt were she to return there.  She would, accordingly, present to her community in Egypt as a single, divorced Christian woman with no support or close relatives in Egypt.

2. In the DFAT Report, the Department of Foreign Affairs and Trade assessed that the majority of Egyptian women, regardless of religion and socio-economic level, faced societal discrimination as ‘long-standing traditional values and gender roles continue to restrict their participation in the community and workforce.’[10]  DFAT assessed that ‘the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence.’[11]

   [10] DFAT Report, para [3.89].

   [11] Ibid.

3. The United States Department of State (USDOS) similarly reports that during 2018:

   Domestic violence was a significant problem. The law does not prohibit domestic violence or spousal abuse, but authorities may apply provisions relating to assault with accompanying penalties…Police often treated domestic violence as a social rather than criminal matter…

   Sexual harassment remained a serious problem. The government prioritized efforts to address sexual harassment. The penal code defines sexual harassment as a crime, with penalties including fines and sentences of six months to five years’ imprisonment if convicted. Media and NGOs reported that sexual harassment by police was also a problem, and the potential for further harassment further discouraged women from filing complaints…

   The constitution provides for equal rights for male and female citizens. Women did not enjoy the same legal rights and opportunities as men, and discrimination was widespread. Aspects of the law and traditional societal practices disadvantaged women in family, social, and economic life.

   Women faced widespread societal discrimination, threats to their physical security, and workplace bias in favour [sic] of men that hindered their social and economic advancement.[12]

   [12] Country Reports on Human Rights Practices for 2018 – Egypt’, US Department of State, April 2019.

4. With regard to sexual harassment, it has been reported that most women are likely to experience such behaviour in their lifetimes, irrespective of their religion, whether they cover their hair or what they are wearing. A 2013 survey by the United Nations (UN) found that 99.3 per cent of Egyptian women had experienced sexual harassment.[13]  In a follow up survey completed by the UN in 2017, this number dropped to 60 per cent.[14]  It is not immediately clear what has led to the decline.

   [13] ‘In some affluent circles in Egypt, the hijab and burkini just won't do’, Global Post, 25 October 2017, CXC90406616573; ‘Women in Egypt Harassed, Mutilated and Disenfranchised’, Spiegel Online, January 2018, CIS7B83941654

   [14] Spiegel Online, ibid.

5. In October 2017, Global Post reported that ‘street harassment is a part of everyday life for women’ in Egypt. According to the article:

   In fact, Cairo was recently named the worst megacity for women. And across Egypt, 60 percent of women, regardless of class or how they dress, say they've been sexually harassed or assaulted, according to a UN gender equality study published this year — in previous years, the figure was as high as 99 percent.[15]

   [15] Global Post, n8, above.

6. In August 2018, Australia’s ABC News reported:

   Sexual harassment in the street is also incredibly common — on one day alone in 2015, during the Eid al-Adha religious holiday, the anti-sexual violence group I Saw Harassment documented more than 200 incidents of either verbal or physical sexual assault against women.

   But it also happens on a daily basis with women being verbally and physically assaulted in public places.[16]

   [16] ‘Young women in Egypt fight harassment on the street and restrictions at home’, ABC News, 27 August 2017, CXC90406624796.

7. State protection for women in Egypt against sexual harassment is limited. Although Egypt introduced a law criminalising harassment in 2014, its effectiveness is limited, as evidenced by the continuingly high levels of harassment against women. The June 2014 legislation criminalises sexual harassment and introduces penalties including prison terms of between six months and five years as well as fines.[17]

   [17] ‘Sexual harassment made a crime in Egypt’, Al Jazeera, 6 June 2014, CX321728; ‘Sexual harassment cases dropped this Eid: National Council for Women’, Egypt Independent, 19 June 2018, CXBB8A1DA36648

8. However, reports indicate that this law is not effectively enforced. Egyptian Streets reports that the law is difficult to implement due to the necessary level of evidence that prosecution requires and because ‘many women opt not to report the harassment for fear of victim blaming.[18]  Freedom House similarly notes that laws prohibiting sexual harassment, domestic violence and female genital mutilation have limited effectiveness:

   [T]he effectiveness of such laws is hindered by social resistance, poor enforcement, abuses by the police themselves, and lack of adequate protection for witnesses, which deter victims from reporting abuse and harassment.[19]

   [18] ‘Egyptian Woman ‘Spat on by Man over Short Dress’, Egyptian Streets, 1 September 2018, CXBB8A1DA36647

   [19] ‘Freedom in the World 2018 – Egypt’, Freedom House, 16 February 2018, NGED867A61

9. Indeed, according to the USDOS, sexual harassment by police is also a serious problem in Egypt[20] and the government has dismissed the UN’s previous finding that in 2013, 99 per cent of women in Egypt had experienced sexual harassment and the aforementioned 2017 Thomson Reuters Foundation poll that named Cairo, the applicant’s home city, as the worst megacity in the world for women.[21]  In November 2017, the President of the National Council for Women (NCW), Maya Morsy, dismissed these findings as biased, stating a NCW commission study that found in 2016 only 9.6 per cent of women were harassed.[22]

   [20] USDOS, n7, above.

   [21] ‘The world's most dangerous megacities for women 2017’, Thomson Reuters Foundation, 2017, CISEDB50AD9217.

   [22] ‘Sexual Harassment Rate in Egypt Is Only 9.6 Percent: Head of National Council For Women’, Egypt Streets, 14 November 2017, CXC90406624797; ‘Women in Egypt Harassed, Mutilated and Disenfranchised’, Spiegel Online, January 2018, CIS7B83941654.

10. The NCW was established in 2000 as the national body responsible for regulating and addressing women’s affairs in Egypt.[23] Regarding the effectiveness of the NCW, Spiegel Online reports:

    The National Council for Women is now seen as an extension of the military government. Critics contend that the organization lacks political will, effective measures and transparency. They say that allegations of sexual crimes by security forces are not adequately investigated. When Human Rights Watch denounced widespread torture by police and state security officials in early September, the human rights committee of the Egyptian parliament called it ‘a pile of lies aimed at tarnishing Egypt's reputation.’[24]

    [23] ‘Does Egypt really need a Women’s Affairs Ministry’, Al Monitor, 19 December 2017

    [24] Spiegel Online, n17, above.

11. The sources consulted by the Tribunal report that, during 2018, two women who publicly complained about being sexually harassed in Egypt have been sentenced to prison.[25]

    [25] ‘Egyptian woman jailed after posting video complaining about sexual harassment’, ABC News, 1 October 2018, CXBB8A1DA36651.

12. Having carefully considered the above information, the Tribunal has formed the view that, as the applicant would present in Egypt as a single Coptic Christian woman with no close relatives or support there, she is at a particular risk of harm.  The Tribunal accepts the applicant’s submission that a single woman in Egypt is always seen as a woman without protection and could be targeted for a variety of reasons.  Her description of herself as an ‘easy target’ on account of her status does not appear to the Tribunal to be hyperbole in view of the country information available.

13. In view of the pervasive discrimination against women in Egypt, the Tribunal considers it likely that the applicant would be exposed to discrimination and harassment on a regular basis, particularly in the course of resettling herself back in Egypt through finding appropriate accommodation, means of earning a livelihood and accessing services.

14. Furthermore, at the hearing, the applicant struck the Tribunal as a strong-willed and outspoken woman as is evidenced by her account of ‘rescuing’ her classmate from Islamic conversion.  The Tribunal also accepts that the applicant has been an active member of the Coptic Christian Church in Australia and that she would continue to seek to worship in and serve at the Coptic Christian church in Egypt, including through daily attendance at services.  If the applicant were to be removed to Egypt now or in the reasonably foreseeable future, she would not be accompanied by her husband or anyone else on this occasion. The Tribunal finds that these factors are likely to contribute to the applicant further being perceived as a single, Coptic Christian woman in a society where women are at a ‘high risk’ of gender-based discrimination and violence.

15. The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm in Egypt. The Tribunal is satisfied that the essential and significant reason for the persecution feared is the applicant’s membership of a particular social group, namely single (albeit perceived), Coptic Christian women in Egypt.  On the basis of the evidence before it, the Tribunal is not satisfied that state protection is available to the applicant in Egypt.  The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Egypt.  For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Egypt for the reason of her membership of a particular social group.

16. In view of her circumstances the Tribunal is not satisfied that the applicant would be able avoid the harm she fears by internally relocating within Egypt. The Tribunal, therefore, is satisfied that she has a well-founded fear of persecution for a Convention reason. 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).

17. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    Damian Creedon
    Member