1609946 (Refugee)

[2023] AATA 2313

1609946 (Refugee) [2023] AATA 2313 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jimmy Morcos (MARN: 0533759)

CASE NUMBER:  1609946

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Jason Pennell

DATE:17 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal has no jurisdiction in relation to [the first applicant].

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 17 April 2023 at 12.15pm

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – son’s involvement with church event – discussion of controversial issues – conversion from Islam to Christianity – leaked on the internet – subsequent threats and harassment – no evidence provided of the event – no evidence provided of internet leak – tribunal accepts applicant would be subject to social discrimination – does not amount to serious harm – economic circumstances as elderly person with limited financial resources – health issues – state of health care in Egypt – will suffer serious harm by reason of his failure to subsist – no jurisdiction for first applicant who is deceased – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss5, 36, 65, 91R(1), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
NAQJ v MIMIA [2004] FCA 946
Prashar v MIMA [2001] FCA 57

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 dependants.

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

2. The applicants who claim to be citizens of Egypt, applied for the visas on 7 April 2014 and the delegate refused to grant the visas on 15 June 2016.

3. The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 1 July 2016 and provided the Tribunal with a copy of the delegate’s decision record.

4. The applicants were first invited to appear before the Tribunal on 28 August 2019.  The Tribunal received a request that this hearing date be vacated due to the serious health condition of [the first applicant]. The Tribunal decided to reschedule the hearing to proceed on 29 October 2019.  Due to her ongoing health concerns, [the first applicant] submitted a similar request that this date be vacated.  The Tribunal considered the request and decided to reschedule the hearing for 13 February 2020.  A further request to vacate resulted in this hearing date being postponed.

5. On 28 April 2022, the Tribunal was notified that the primary applicant[passed] away [in] April 2022.   The Tribunal was also notified that the health of[the applicant husband] had greatly deteriorated. 

6. On 17 May 2022, the Tribunal confirmed receipt of the news that [the first applicant] had passed away and noted that the claims made by [the applicant husband] were similar to those made by [the first applicant] and stated its intention to proceed with a hearing for the purposes of hearing and determining [the applicant husband]’s protection claims. On 18 May 2022 the applicant’s representative provided to the Tribunal a copy of the [the first applicant]’s official death certificate issued by the registry of Birth deaths and marriages dated [May] 2022. As a result, on 20 May 2022, the Tribunal found that because of her death, it no longer had jurisdiction in respect of [the first applicant] but was able to proceed with the review of the [the applicant husband] (‘the applicant’).[1]

   [1]    Jurisdiction Recommendation - Applicant Deceased dated 20 May 2022: AAT File No 11609946, ID Doc 9781188

7. On 23 May 2022, the Tribunal invited the applicant to appear before it on 9 August 2022 and invited him to obtain a medical report and make any submissions regarding his ability to appear before the Tribunal for the purposes of giving evidence and in support of his claim.

8. On 5 July 2022, the applicant provided medical documentation in support of his inability to attend a hearing before the Tribunal due to his physical health, mental health as well as his current medical conditions and age.  This information was accompanied by a request that the Tribunal decide the application for review on the papers.

9. On 2 August 2022, the Tribunal wrote to the applicant to acknowledge the submissions received on 5 July 2022, advising that the applicant was not well enough to attend a hearing and requesting the Tribunal to make a decision without a hearing. The applicant was duly notified that the hearing scheduled for 9 August 2022 was cancelled and that a decision would be made based on the information before the Tribunal.

1. The applicant was represented in relation to the review.

RELEVANT LAW

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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

1. 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).

2. Australia is a party to the Refugees Convention and, 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.’

3. 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.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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.

3. 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.

Mandatory considerations

1. 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.

APPLICANT’S CLAIMS AND EVIDENCE. 

Applicant’s identity and country of reference.

1. The applicant claims that he was born on [date] in Alexandria, Egypt. The applicant provided a copy of his Egyptian passport[2] to the department together with a copy of his birth certificate (accompanied by a certificated translated copy)[3] that confirmed the applicant’s date and place of birth. In addition, the applicant provided the detail of his National Identity card to the department.[4] There is no evidence to suggest that either are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

   [2] Dept File No [number] Doc ID 9670114 f.131

   [3] Dept File No [number] Doc ID 9670114 f.104

   [4] Dept File [deleted], f.74

2. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the second applicant, the Tribunal finds that the second applicant is a citizen of Egypt and as such his protection claims will be assessed against Egypt as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant’s visa and travel history to Australia is identical to that of [the first applicant].  They were granted Visitor (TR-676) visas on 12 August 2009 and arrived in Australia [in] December 2009 until they later departed [in] March 2010. A subsequent application for further Tourist visas, lodged on 17 October 2011 was refused on 24 October 2011. The applicant and [the first applicant] returned to Australia after a further Visitor visa application was granted [in] December 2011, arriving [in] December 2011 and departing [in] May 2012.

2. On 24 July 2013, the applicant and [the first applicant] applied for another Tourist visa which was granted on 20 August 2013.  They arrived in Australia [in] February 2014 and applied for a Protection Visa, Subclass 866 on 7 April 2014.   The applicant and [the first applicant] were granted a Bridging Visa A, Subclass 010 on 7 April 2014 in association with the Protection Visa application.

Claims for protection

1. The Tribunal notes that despite the application having been made by [the first applicant] as the primary applicant, by his Statutory declaration dated 21 August 2019 the applicant confirms that the claims made by his wife, [the first applicant] are also his claims. As such the applicant’s claims are contained in the application for protection submitted to the Department on 7 April 2014 and detailed in [the first applicant] Statutory Declaration dated 12 March 2014[5] as follows:  

   [5] Dept File [deleted], f.77

   ‘1. My name is [the first applicant]. I was born in [Behiera], Egypt on [date].

   2. We are Coptic Orthodox Christians, and I am seeking protection in Australia so that I do not have to go back to Egypt as my family has faced danger there and it is extremely unsafe for us to live there.

   3. My son was involved in a church [event] which was leaked on the internet with his name and credentials. This [event] discussed controversial issues such as conversion from Islam to Christianity. As conversion is strictly forbidden in Islam people who convert are charged with Apostasy under Sharia Law. There is a Mosque [close] to the Church, and after the prayers, a group left the Mosque and attacked the Church. The burnt it and they locked the Church servants inside. My son being one of them. The Church is [Church 1] in [location]. Our house has been broken into twice since our last visit to Australia. These issues are linked to my son’s case. Because of his involvement in church activities, our family has faced danger. Please see attached a copy of his decision record.

   4. As a result of my son’s involvement in the Church [event], I have been verbally abused in the streets and threatened. My husband was chased through the streets and attacked. I have had to change churches due to fear of attending as I am targeted. I have a letter from my confession father (priest) in Egypt which verifies that I can only attend when I am able to due to fear.

   5. I have been visiting a psychiatrist due to my fear of attack. I had to finalise my work commitments 5 years earlier than retirement due to the aforementioned circumstances.

   6. As an elderly Christian female, I am an easy target in Egypt. I am not covered (hijab) and this makes me easily identifiable as a Christian. Muslims also yell slanderous and racist comments from the microphones in the mosques. I was directly threatened which was the reason I became a prisoner in my own house and would only leave the house being accompanied by my husband.

   7. They call Christians Kuffar (infidels). This systematic discrimination has always taken place in Egypt, and we have lived with it since birth. Christians make up less than 10% of the population and are treated as second class citizens.

   8. In our last visit to Australia we thought the situation would get a little bit easier and safer since all the previous events took place with the election of a new President. It has become so much worse since and it is not even safe to leave the house at all. We are targeted now more than ever, and it is only a matter of time before we are found and killed.

   9. Since the well-publicized 25th January 2011 Revolution, and the over-throwing of the long-established Mubarak government, the Muslim Brotherhood has taken unprecedented control over the country.

   10. An attack occurred on 1st January 2011 in Alexandria where a bomb was detonated in front of A1 Qidiseen Church, killing more than 20 church dwellers and seriously injuring hundreds. Ironically prior to the attack by a few minutes, the police securing the premises all disappeared, leaving the church vulnerable and open to invasion. A lack of domestic protection was clearly evident in October 2011 during a protest facilitated by Christians, resulting in a Maspero massacre. The military were disapproving of the Christians’ request, where military armed vehicles perused through the protest area and killed many by either crushing or shooting by soldiers.

   11. There are many notorious attacks on Coptic Christians in Egypt such as that occurred in October 2012 in Beni Suef. As Copts were leaving the Sunday Mass, they were attacked by Salafists and 5 Copts were hospitalized. Although the parish priest contacted the authorities seeking protection, no response was provided until several hours after the incident took place. It is clear on that basis that authorial figures in Egypt are generally intolerable of Christians and will not provide them with the adequate care and protection needed.

   12. The issue of religious tension between Christians and Muslims has worsened recently where it has become a widespread issue rather than an isolated situation of severe persecution in Egypt. Coptic Christians worldwide are facing increased acts of violence and currently fear for their lives solely due to their religious affiliation. Even a 10-year-old Christian girl was shot dead in the street due to her religion and being a Coptic Christian. Till date, more than 80 churches have been attacked due to religious discrimination. We know that there is a general discrimination against Coptic Christians however, we feel as though we are specifically targeted due to the aforementioned events.

   13. There is also war brewing on the streets between supporters of the Muslim Brotherhood against the opposition. The situation is only going to go from bad to worse for all Christians in the country.

   14. The current instability in Egypt has worsened since the fall of the Mubarak regime, causing many attacks, kidnappings and forced conversions on Christians. Egypt is now in a state of lawlessness with little to no authoritative police force protecting the area. Many Police have even gone into hiding. The Police headquarters in Cairo was even attacked and this is enough to show that the country is in a state of lawlessness. We cannot rely on any authoritative figure to protect our lives and our freedom of religion.

   15. We know many Coptic Christian families that have been living in fear due to a string of attacks against churches, businesses and homes carried out by angry supporters of Morsi. We have my husband’s sister remaining in Egypt, all other family members have had to seek asylum in Australia, Canada or America due to the issues regarding my son’s case.

   16. We are the only Christian family in our street in [location]. There is no police force protecting the residents. The police authorities are corrupt and do not assist the people, especially the Christian minority. My son and daughter cannot protect us, as our son is in danger and has found asylum in Australia. My daughter is an Australian Citizen with young children, and she cannot bring them because they may be harmed.

   17. We have already tried moving to many parts and relocating, but we have been found and targeted as a result of my son’s matter. We are also very elderly, and relocating has become an impossible task due to our age and physical limitations.

   18. We regularly attend Mass at [Coptic Orthodox Church 2] in [suburb], Victoria. We are known by Father [A] at that church, and he is familiar with our family’s story.

   19. The Coptic Orthodox Church has supported my whole family in numerous ways. [Official B] of the Diocese of Melbourne has provided letters of support for my son in his application and is familiar with the events that have happened to our family. My husband’s sister and her family have also sought protection in Australia and were all approved.

   20. Since our arrival in Australia we have found indescribable peace and safety. We fear returning to Egypt as we are unsure whether we will be able to survive from day to day as the situation is volatile and literally anything can happen.

   21. We kindly seek the protection from the Australian Government to support our application for protection in Australia as freedom of religion in Egypt is nonexistent and we truly fear for our lives. Please help our family.’

1. The delegate summarised the applicant’s claims as follows[6]:

   [6] Decision Record dated 15 June 2016, Dept File [number], f.186-195

   ·      The applicant claims that she and her family are Coptic Orthodox Christians. Her family has faced danger in Egypt, and it is extremely unsafe for them to live there.

   ·     Her son was involved in a church [event] which was leaked on the internet with his name and credentials. This [event] discussed controversial issues, such as conversion from Islam to Christianity. A group from the Mosque attacked [Church 1] in [location]. They locked church servants, including her son, inside and burned the church. Their house was broken into twice since their last visit to Australia. These issues are linked to her son’s case. Because of his involvement in church activities, her family has faced danger.

   ·     As a result of her son’s involvement in a Church [event], she has been verbally abused in the street and threatened. Her husband was chased through the streets and attacked. She has had to change churches for fear of being targeted. She has been visiting a psychiatrist due to her fear of attack. She had to leave work five years earlier due to these circumstances.

   ·     As an elderly Christian female, she is an easy target in Egypt. She is easily identifiable as a Christian. Muslims also yell slanderous and racist comments from Mosque microphones. She was directly threatened, which was the reason she became a prisoner in her own house and would only leave the house with her husband.

   ·     Systematic discrimination of Christians has always taken place in Egypt. Christians are referred to as kuffar (infidels).

   ·     After the election of the new president, the situation has become much worse, and it is not safe to leave the house at all. It is only a matter of time before they are found and killed.

   ·     Since the January 2011 Revolution and the overthrow of the Mubarak government, the Muslim Brotherhood has taken control of the country. On 1 January 2011 a bomb was detonated at A1 Qidiseen church in Alexandria, killing 20 people and injuring hundreds. The police guarding the church disappeared a few minutes before the explosion. In October 2011 protesting Christians were killed by the military, an event referred to as the Maspero massacre. In October 2012 in Beni Suef, Copts were attacks by Salafists as they were leaving the Sunday Mass. The authorities did not provide protection until several hours after the attack. Egyptian authorities and intolerant of Christians and will not provide protection for Christians.

   ·     Religious tension between Christians and Muslims has worsened recently. Coptic Christians face severe persecution, and fear for their lives due to their religion. More than 80 churches have been attacked. Apart from general discrimination against Christians, she feels that they are specifically targeted due to the aforementioned events.

   ·     There is war brewing on the streets between supporters of the Muslim Brotherhood and the opposition. The instability in Egypt has worsened since the fall of the Mubarak regime, causing many attacks, kidnappings and forced conversions of Christians. Egypt is now in a state of lawlessness with little or no authoritative police force. Police have gone into hiding.

   ·     Many Coptic Christians have been living in fear due to attacks against churches, businesses and homes carried out by Morsi supporters. All her family members, apart from her husband’s sister have sought asylum in Australia and other countries due to the issues surrounding her son’s case.

   ·     They are the only Christian family in their street in [location]. There is no police force protecting the residents. The police are corrupt and do not assist people, especially Christians. Her son and daughter cannot protect them as they are now in Australia.

   ·     They have tried relocating to different areas, but they have been found and targeted because of her son’s matter. They are also elderly, and relocating has become impossible due to their age and physical limitations.

   ·     They fear returning to Egypt as they are unsure whether they will be able to survive from day to day in such a volatile environment.

Applicant’s supporting documentation

1. The applicant provided the following material to the Department:

   ·Letter from [Official B] of the Coptic Orthodox Diocese of Melbourne, dated [April] 2016[7]

   [7]    Dept File [number], f.183

   ·Original and Translated Statement of [name deleted][8]

   [8]    Dept File [number], f.181

   ·Original and Translated Threat Letters (x2)[9]

   [9]    Dept File [number], f.179-180

   ·Medical Report from [the doctor] for the first applicant dated 17 November 2013[10]

   [10]   Dept File [number], f.175

   ·Radiology report [and] related radiology images, for the first applicant, dated 12 January 2014[11]

   [11]   Dept File [number], f.171-174

   ·[Medical] Centre letter for the first applicant dated 22 September 2014[12]

   [12]   Dept File [number], f.170

   ·Hospital Report (Egypt) [for] the first applicant dated 29 November 2012[13]

   [13]   Dept File [number], f.169

   ·Capital Radiology Report for the first applicant dated 5 May 2014[14]

   [14]   Dept File t File [number], f.168

   ·Certified translated copy of Employer Termination Certificate[for] the first applicant dated 30 September 2007[15]

   [15]   Dept File [number], f.167

   ·Statutory Declaration of [name  deleted] dated 14 January 2015[16]

   [16]   Dept File [number], f.166

   ·Prescription Patient History for the first applicant between 1/1/14 to 22/6/16 issued by [a Pharmacy][17]

   [17]   Dept File [number], f.165

   ·Letter from [Official B] of the Coptic Orthodox Diocese of Melbourne, dated [February] 2015[18]

   [18]   Dept File [number], f.163

   ·First applicant passport, expired [in] 2018[19]

   [19]   Dept File [number], f.158

   ·Second applicant passport, expired [in] 2018[20]

   [20]   Dept File [number], f.131

   ·Marriage Deed, registration date [date]/5/1977[21]

   [21]   Dept File [number], f.104

   ·Neuropsychiatrist Medical Report for the first applicant dated 9/12/2013[22]

   [22]   Dept File [number], f.100

   ·Certificate of Service for the second applicant dated [date]/1/2014, issued by the Coptic Orthodox Patriarchate in Alexandra[23]

   [23]   Dept File [number], f.95

   ·Certificate of Service for the first applicant dated [date]/1/2014, issued by the Coptic Orthodox Patriarchate in Alexandra[24]

   [24]   Dept File [number], f.93

   ·Transcript of Birth Registration + Certificate of Baptism for both applicants[25]

   [25]   Dept File [number], f.82-89

   ·Form 80 Personal particulars for assessment including character assessment for the first applicant dated 27 March 2014[26]

   [26]   Dept File [number], f.77

   ·Form 80 Personal particulars for assessment including character assessment for the second applicant dated 27 March 2014[27]

   [27]   Dept File [number], f.59

   ·Form 866, Part D Application for a member of the family unit (second applicant)[28]

   [28]   Dept File [number], f.41

   ·Statutory Declaration of first applicant (Statement of Claims), dated 12 March 2014[29]

   [29]   Dept File [number], f.34

   ·Form 866, Part C Applicant for an applicant who wishes to submit their own claims for protection (first applicant)[30]

   [30]   Dept File [number], f.30

   ·Form 866, Part B Persons included in this application and family composition[31]

   [31]  Dept File [number], f.14

   ·Form 956 Advice by a migration agent/exempt person of providing immigration assistance[32]

   [32]  Dept File [number], f.3

   ·Legal Submissions dated 21 August 2019, together with the following supporting documentation[33]:

   [33]  AAT File 1609946, Doc ID 6140280, 6140281, 6140282, 6140283, 6140284 and 6159991

   ·Statutory declaration of the first applicant, dated 21/8/2019

   ·Statutory declaration of the second applicant, dated 21/8/2019

   ·Endocrinologist Reports for the first applicant dated 19/7/2018 and 30/8/2018

   ·Rheumatology Reports for the first applicant dated 21/2/2018 and 19/12/2018

   ·[Medical] Centre report for the first applicant dated 18/8/2019

   ·Letter of Support from Fr. [named], Coptic Orthodox Diocese of Melbourne dated [date]/8/2019

   ·Extensive country information from 2016 - 2019 including various articles regarding the treatment of Christians in Egypt

   ·Further Medical Reports submitted on 10 October 2019 as follows[34]:

   [34]   AAT File 1609946, Doc ID 6384347

   ·[Medical] Centre report for the second applicant dated 30/9/2019

   ·Various nephrology reports between 2015-2019 for the second applicant

   ·Certificate of Attendance at [a] Hospital dated 18/9/2019 for the first applicant

   ·Hospital Report (Egypt) [for] the first applicant dated 29 November 2012

   ·[Medical] Centre report for the first applicant dated 30/9/2019

   ·Various rheumatology reports between 2017-2019 for the first applicant

   ·Further Medical Reports submitted on 29 January 2020 and 6 February 2020 as follow[35]:

   [35]   AAT File 1609946, Doc ID 6841287 and 6880547

   ·Social Worker Report for the first applicant dated 1/12/2019

   ·Social Worker Report for the second applicant dated 1/12/2019

   ·Psychiatric Report for the first applicant dated 4/11/2019

   ·[Medical] Centre report for the first applicant dated 28/1/2020 and related photographs of swollen neck

   ·[Health service] hospital discharge report for second applicant dated 3/1/2020

   ·Capital Radiology report dated 3/2/2020 and related medical certificate for the first applicant dated 4/2/2020

   ·[Medical] Centre report for the first applicant dated 10/2/2020

   ·Legal Submissions requesting reconstitution to a different Tribunal Member and supporting medical documentation, received 25 February 2020[36]

   ·Death Certificate of first applicant received 18/5/2022[37]

   ·Representative submissions received 5/7/2022 that the second applicant is not well enough to participate in a hearing, supported by the following medical reports[38]:

   ·[Medical] Centre report dated 2/7/2022

   ·List of current medical conditions and current medication (undated)

   ·[Health service] report dated 21/2/2022

Applicant’s evidence

[36]   AAT File 1609946, Doc ID 6967757

[37]   AAT File 1609946, Doc ID 9780972.

[38]   AAT File 1609946, Doc ID 9945628.

1. On 5 July 2022 the applicant’s representative advised the Tribunal that the applicant was not able to attend a hearing due to ill health and requested that the Tribunal proceed to determine the review application without a hearing.  On 9 August 2022 the Tribunal confirmed that it would proceed to make decision in relation to the applicants application for protection visa  on the information before it.

2. The applicant’s evidence was that he was born on [date] in Alexandria, Egypt.[39] He claims to be an ethnic Egyptian and a Christian (Coptic Orthodox). The applicant states that he reads writes and speaks Arabic.

   [39]   Dept File No [deleted] Doc ID 9670114 f.131.

3. The applicant claims he had five siblings, a stepbrother, three sisters and a brother. The applicant’s stepbrother, and one of his sisters have passed away. The applicant’s remaining sisters continue to live in Alexandria, Egypt.[40]

   [40]   Dept File No [deleted] Doc ID 9670114.

4. The applicant was educated in Egypt. He attended [High] School in Alexandria, Egypt from [year range] and then the Faculty of [deleted] at [University 1] from [year range].[41]  The applicant claims from 1970 to 1975 he performed his military [service].[42]

   [41]   Dept File No [deleted] Doc ID 9670114 f.50.

   [42]   Dept File No [deleted] Doc ID 9670114 f.51.

5. The applicant married [the first applicant] on [date] May 1977.[43] Together they have a son (born on [date]) and a daughter Born on [date]) both of whom are residents in Australia.[44] 

   [43]   Dept File No [deleted] Doc ID 9670114 f.104.

   [44]   Dept File No [deleted] Doc ID 9670114 f.55.

6. The applicant claims that he is a devout Coptic Orthodox Christian.[45] He claims that in or about 2011 his son was involved in a Church [event] by [Church 1] in [location], Egypt. The [event] dealt with some controversial issues including the conversion to Christianity from Islam.  The [event] details were leaked to the internet with the applicant’s son’s name and credentials. Following the leak, the Church was attacked after a Coptic prayer service by a group of Muslims for the established Mosque next to the Church. Having locked the Church servants, including their son inside the Church, they set fire to the Church. The applicant’s son was granted a protection visa in Australia because of threats he received as a result of his involvement in the [event]. 

   [45]  Letter SM Lawyers dated 21 August 2019 @ p.4; AAT File 1609946, Doc ID 6140280.

7. The applicant claims that because of his son’s involvement in the Church activities, in particular the [event], together with his free religious expression, the family have been subjected to danger and serious harm in the form of threats of violence and verbal abuse. The applicant claims that he was verbally abused and physically attacked having been chased through the streets of Alexandria.[46]  The applicant provided a handwritten note as an example of the threats that he had received on a daily because of his son’s activities.[47]  Due to the regularity of the threats against the applicant and his family they were forced to regulate and inhibit their regular attendances at the church due to an increased fear of being targeted.

   [46]  Letter SM Lawyers dated 21 August 2019 @ p.5; AAT File 1609946, Doc ID 6140280.

   [47] Letter SM Lawyers dated 21 August 2019 @ exhibit D; AAT File 1609946, Doc ID 6140280

8. As a result of the attacks the applicant’s wife, [the first applicant] visited a physiologist for the treatment of panic attacks, anxiety, and post-traumatic stress disorder (PTSD). The applicant provided the Tribunal with a psychologist report in addition to his wife’s medication history in relation to her antidepressant medications and medication related to her general poor health.[48]

   [48]   Letter SM Lawyers dated 21 August 2019 @ exhibit E; AAT File 1609946, Doc ID 6140280

9. In or about 2009 the applicant and his wife’s car was vandalised. The windows were broken, and the tyres were slashed. The applicant and his wife did not report the incident to the police out of fear of retaliation. They believed that extremist members are present within the police force. They believed that as Coptic Christians, if they reported the incident of their car being damaged to the police, information about them would be leaked to Islamic extremists and they would be targeted and harmed. As a result, they avoided any meetings with the police, particularly after the Church [event].

10. The applicant claims that since the revolution on 25 January 2011 in which the Mubarak Government was overthrown, the Muslim brotherhood has taken unprecedented control of the country. The issue of religious tension between Christians and Muslims has worsened to the point of becoming a widespread issue in Egypt.[49]  The applicant claims as a Coptic Christian there is a real chance he will be seriously harmed if he is returned to Egypt.

    [49]  [The first applicant] Statutory Declaration dated 12 March 2014 AAT File 1609946, Doc ID 6140280.

11. The applicant claims to be in poor health as he suffers for chronic kidney disease and type II diabetes mellitus and hypertension. The applicant provided several medical reports in support of his diagnosis.[50] The applicant’s evidence is that he now aged and fragile. If he is returned to Egypt, he will not be able to care for himself as he has no family able to care for him remaining in Egypt.[51] As a result he will be placed at greater risk, as his health will deteriorate if he is returned to Egypt.

    [50]   [Deleted] Health, Department of Renal Medicine dated 21 August 2015, 9 October 2015, 27 May 2016, 15 April 2019, 23 January 2018, 8 October 2018; AAT File 1609946, Doc ID 6841287; [Health facility] Clinical Social Worker dated 1 December 29019 AAT File 6841287, Doc ID 6140280.

    [51]   [Health facility] Clinical Social Worker dated 1 December 29019 AAT File 6841287, Doc ID 6140280.

COUNTY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Egypt dated 17 June 2019 (the DFAT report)[52]  marked as ‘Annexure A’ to this decision.

   [52]   DFAT Report @ p.17.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the second applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In this case, the applicant appeared before the Tribunal in person to give evidence. Nevertheless, the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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 the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[53]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[54]

   [53] s.5AAA Migration Act 1958.

   [54]   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.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[55] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[56] However, such a benefit should 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.

   [55]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.

   [56]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

Refugee

Applicant’s relevant grounds

1. The applicant submits[57] that his claims fall within the scope of Article 1A(2) of the Convention by reason of his religion as a Coptic Orthodox Christian. The question of whether an applicant has a well-founded fear of being persecuted for reasons of his religion can arise in a variety of circumstances, including the application of general religious-based laws, departing from orthodox beliefs, conversion, apostasy[58] and mixed marriage. Whether the relevant nexus exists will often depend on the motivation of the persecutor.[59]

   [57]  Letter SM Lawyers dated 21 August 2019 @ p.3; AAT File 1609946, Doc ID 6140280

   [58]  WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285 in which it was noted that an apostate does not require conversion from one faith to a different faith, but does require abandonment or rejection of the first faith.

   [59]   VCAD v MIMIA [2004] FCA 1005 at [35] where the Court held that where an applicant avoided military service for religious reasons may have a well-founded fear of persecution where there is an indirect discriminatory effect for reasons of religion.

2. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[60] as:

   71The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.

   [60] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] >

   In Prashar v MIMA[61],  when considering the Refugee Convention, the Federal Court held that persecution ‘for reasons of religion’ can be persecution because the applicant does not have a particular religion or because the applicant’s conduct offends against the religion of the alleged persecutors.[62] In addition the Court held that the Refugee Convention definition was not limited to people holding a religious belief but extended to non-believers.[63] Justice Madgwick stated:

   … if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.[64]

   [61]   Prashar v MIMA [2001] FCA 57.

   [62]   Ibid.

   [63]   Ibid.

   [64]   Prashar v MIMA [2001] FCA 57 at [19]. His Honour added that if there is anything in Awan v MIMA [1998] FCA 435 to the contrary, he believes it to be clearly wrong and would not follow it. An appeal was dismissed by the Full Federal Court on other grounds without considering Madgwick J’s reasoning on non-believers: Prashar v MIMA [2001] FCA 1119 and Prashar v MIMA (2001) 115 FCR 197.

3. Persecution on the ground of religion does not necessarily involve a clash of religious doctrines or of persons of one religion seeking to persecute those of another. In NAQJ v MIMIA,[65] Branson J held that if an applicant did not wish to comply with all the rites and customs of Islam (that is, she did not accept a ban on living in de facto relationships), it was open to the Tribunal (subject to s 91R of the Act), to conclude that any persecution the applicant faced was because of her religion.[66]

   [65]  NAQJ v MIMIA [2004] FCA 946 at [16].

   [66]  NAQJ v MIMIA [2004] FCA 946 at [18]. See also SCAT v MIMIA [2002] FCA 962 at [33] where the Court held that a well-founded fear of persecution could arise for reasons of religion if the risk of harm arose for reasons of the religion of the persecutors and their disposition, by reasons of their religion, towards the asylum seeker. On appeal, the Full Federal Court overturned this decision, however, the discussion of persecution for reasons of religion was not disturbed: SCAT v MIMA [2003] FCAFC 80.

4. In this case the applicant has provided a document[67] (with its English translation) entitled Certificate of Service from the Coptic Orthodox Patriarchate in Alexandria Egypt that confirms the applicant is member of the church congregation, that he attends holy liturgies and receives holy communion from the church on a regular basis. Based on the documentation provided by the applicant and his claims detailed in his application the Tribunal accepts the applicant is a Coptic Orthodox Christian as claimed. As such, the accepts that the applicant’s claims fall within the scope of religion pursuant to Article 1A(2) of the Refugee Convention as claimed.   

   [67]   Certificate of Service from the Coptic Orthodox Patriarchate in Alexandria dated 14 January 2014; Dept File CLF201452919, Doc ID 9670114.

5. It is open to the applicant to claims that he is a member of a particular social group (PSG) for the purposes of Article 1A(2) of the Refugee Convention by reason of his economic circumstances if he is returned to Egypt. The applicant is an elderly person in poor health who has limited economic resources. The submission made by the applicant’s representative is he has no immediate family remaining in Egypt and no family who are able or willing to care for him. In addition, if he is returned to Egypt, he has no property or home, and no income. As result, he claims that he will be seriously harmed if returned to Egypt by reason of the fact that he would not have the capacity to support himself or earn a living.

6. Section 5L of the Act defines PSG for Protection visa applications. For the purposes of the Act, a person is to be treated as a member of a particular social group if:[68]

   (a)a characteristic is shared by each member of the group; and

   (b)the person shares, or is perceived as sharing, the characteristic; and

   (c)any of the following apply:

   (i)     the characteristic is an innate or immutable characteristic.

   (ii)     the characteristic is so fundamental to a member’s identity or conscience; the member should not be forced to renounce it.

   (iii)     the characteristic distinguishes the group from society; and

   (d)the characteristic is not a fear of persecution.

[68] Section 5L of the Act.

7. Based on the information provided to the Tribunal, the Tribunal accepts that the applicant is an elderly person who has limited economic resources and has no family remaining in Egypt, no property or home, and no income. As such the Tribunal accepts that as an elderly person with limited economic resources or opportunities that the applicant is a member of a PSG pursuant to s.5J(1)(a) of the Act.  

Applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA[69] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[70]

   [69] (1989) 169 CLR 379 at 396.

   [70] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear as a question of fact. In this case based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Egypt.

4. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[71]

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [71]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

5. In MIEA v Guo, the Court stated that:[72]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [72]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

6. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if he is returned to Egypt by reason of his religious beliefs as a Coptic Orthodox Christian. However, the Tribunal does accept that he has a well-founded fear of persecution on an objective basis if he is returned to Egypt by reason of his economic circumstances as an elderly single man in Egypt. 

Accepted facts

1. Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant, the Tribunal accepts and finds that:

   (a)the applicant was that he was born on [date] in Alexandria, Egypt.[73]

   [73]  Dept File No [deleted] Doc ID 9670114 f.131.

   (b)the applicant an ethnic Egyptian and a Coptic Orthodox Christian.

   (c)the applicant states that he reads writes and speaks Arabic.

   (d)the applicant had five siblings, a stepbrother, three sisters and a brother. The applicant’s stepbrother, brother and one of his sisters have passed away. The applicant’s remining sisters continue to live in Alexandria Egypt.[74]

   (e)the applicant was educated in Egypt. He attended [High] School in Alexandra Egypt, the Faculty of [deleted] at [University 1].  

   (f)The applicant performed his military service from 1970 to [1975].[75]

   (g)the applicant married [the first applicant] on [date] May 1977.[76]

   (h)[The first applicant] passed away [in] April 2022.  

   (i)The applicant has a son (born on [date]) and a daughter Born on [date]) both of whom are residents in Australia.[77] 

Applicant as a Coptic Orthodox Christian.

[74]  Dept File No [deleted] Doc ID 9670114.

[75]  Dept File No [deleted] Doc ID 9670114 f.51.

[76]  Dept File No [deleted] Doc ID 9670114 f.104.

[77]  Dept File No [deleted] Doc ID 9670114 f.55.

1. The applicant claims that if he is returned to Egypt there is a real chance he will be seriously harmed as a Coptic Orthodox Christian (Copt). The applicant claims that his son’s [event] at [Church 1] in [location], Egypt in 2011 dealt with some controversial issues including the conversion from Islam to Christianity. His evidence was that the [event] was leaked onto the internet (including his son’s details) and as a result the Church was attacked and burned by a group of militant Muslims from the Mosque next to the Church. The applicant claims that because of his son’s involvement in the [event] his family had received threats of violence and verbal abuse for the Islam militants. He claims that he was verbally abused and physically attacked having been chased through the streets of Alexandria.[78]  The applicant provided a handwritten note (with English translation) as an example of the threats that he had received on a daily due to his son’s activities.[79] 

   [78]  Letter SM Lawyers dated 21 August 2019 @ p.5; AAT File 1609946, Doc ID 6140280.

   [79] Letter SM Lawyers dated 21 August 2019 @ exhibit D; AAT File 1609946, Doc ID 6140280

2. However, there was no evidence before the Tribunal of the leaked information on the internet. In such circumstances the Tribunal would have expected that the applicant would have been able to produce a copy of the material leaked onto the internet. In addition, the applicant did not provide any specific details (including the time and the location) of each threat received because of his son’s involvement in the [event]. In addition, the applicant did not provide any details of harm that the applicant received because of each threat. Therefore, in circumstances where that applicant has not detailed how the information was on the internet and the nature of the threats received that Tribunal does not accept, he was threatened as claimed and as such does not accept that there is a real chance the applicant will be seriously harmed if he is returned to Egypt because of his son’s involvement in the [event].    

3. The country information reports that Egypt is one of the oldest centres of Christianity in the world, Christianity having been established in Egypt in the first century.[80] The vast majority of Christians in Egypt are members of the Coptic Orthodox Church. 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. Its reported[81] that Egyptian Christians are politically and socio-economically diverse. They work in varying professions and range from the very poor to the wealthy.[82] Christians generally dress similarly to Muslim Egyptians, in urban areas, Christian women are more likely than Muslim women to leave their hair uncovered.[83]

   [80]   DFAT Report at p.20

   [81]  ibid

   [82]   ibid

   [83]  ibid

4. However, Coptic Christian do suffer from systematic discrimination in that taxes that they pay go to mosques, Muslim schools and universities and imams but not for Christian organizations. They tend to be underrepresented in government job positions, including in the educational system. Discriminatory restrictions on the construction and repair of churches continue to exist, and the laws on marriage inheritance and conversion also discriminate against Christians. Local government authorities have closed at least 25 churches and church-related facilities since 2016.

5. The country information[84] reports that in June 2012 Mohammed Morsi of the Freedom and Justice Party (‘FJP”) was elected president of Egypt.  The FJP is the political wing of the Muslim Brotherhood (‘the Brotherhood’). It’s reported[85]  that at that time Christians in Egypt were apprehensive about the ascendency of the Muslim Brotherhood after the 2011 Revolution. However, large scale protests occurred across the country against President Morsi, criticising his authoritarian rule and inability to improve the economic position of the country.[86] In July 2013 a military intervention removed Morsi from power and installed an interim military regime. The security forces violently suppressed pro-Morsi demonstrators and re-designated the Brotherhood as a terrorist organisation.[87] The DFAT report[88] states that most, if not all, NGOs affiliated to the Brotherhood have either been shut down, had their assets seized, and/or had their board replaced with government appointees. While the Brotherhood has been weakened by the government’s crackdown, it’s reported that it lost broad support because of its incompetence while in power, and because of the anti-Brotherhood propaganda under President Sisi.[89] Nevertheless the Brotherhood retains a core support of around 20 per cent of the population.[90]

   [84]   DFAT Report at p.7

   [85]  DFAT Report at p.20

   [86]  ibid

   [87]   ibid

   [88]   DFAT Report at p.24

   [89]  ibid

   [90]  ibid

6. It’s reported[91] that Copts have suffered persecution from Islamic extremists including ISIS which has targeted them and massacred over 100 in recent years. In the wake of the 2011 Revolution, there was a decline in law and order in Egypt resulting in an increase in violent crime, civil unrest, and terrorist attacks. [92] The significant growth in communal violence, affected the Christian community with a number of attacks on the Christian community[93] including an attack on St Mark’s Cathedral in Cairo in December 2016 by a suicide bomber that killed 29 and injured 40 people.[94]   On 9 April 2017, there were two attacks on Palm Sunday Services in Tanta (killing 27 people and injuring over 70) and Alexandria (16 people were killed and 66 people were injured).[95] In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith.[96] In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing 7 and wounding 19 people.[97] It’s reported that a number of attacks have been thwarted by the security forces. A strong emphasis on internal security has largely restored general law and order throughout most of the country. The applicant provided the Tribunal with several articles in support of the extremist attacks on Coptic Christians in Egypt.

   [91]  Religion Unplugged, ‘Are Egypt’s Copt Christians Persecuted? Why some Copts say no.’ by Paul Marshall 15 January 2021; http:religionunplugged.com/news/2021/1/15/are-egypts-christians-persecuted-why-copts-say-n

   [92]  DFAT Report at p.13

   [93]   ibid

   [94]  DFAT Report p.18

   [95]   Huffpost, ‘Who are Egypt’s Coptic Christian and what do they believe?’ dated 10 April 2017 by Antonia Blumberg; ibid

   [97]  ibid

7. In addition, it’s reported,[98] that apart from terrorist attacks, radicals or mobs may attack Christian meetings that are not in a church, or when they build or repair churches, or are suspected of doing so, or are public about their faith, or talk to Muslims about their beliefs, or are believed to have insulted Muslims. There are also attacks on Copts, often women, to get them to convert. Converts from Islam, those accused of proselytism, and those accused of a relationship with a Muslim woman, are particularly targeted.

   [98] , Huffpost, ‘Who are Egypt’s Coptic Christian and what do they believe?’ dated 10 April 2017 by Antonia Blumberg; >

   In 2013, General Sisi overthrew the short-lived Muslim Brotherhood government. It’s reported that Christians in Egypt were generally relieved by the removal of the Morsi government.[99] While the country information[100] reports that conditions could be better, its reported[101] that Christians and other minority faiths consider that they are better protected under President Sisi than previous Egyptian leaders. In 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo. He has activity engaged in the Christian community and has continued to attend the Christmas mass each year.[102]

   [99]   ibid

   [100]  ibid

   [101]  ibid

   [102]  ibid; Religion Unplugged, ‘Are Egypt’s Copt Christians Persecuted? Why some Copts say no.’ by Paul Marshall 15 January 2021; type="1">

8. In 2017 Amnesty International[103] reported that successive Egyptian governments have failed to tackle a longstanding pattern of discrimination against Copts and rising incidences of sectarian violence, by bringing those responsible for sectarian crimes to justice. Instead of prosecuting those behind such violent attacks the Egyptian government President Sisi has relied on state-sponsored reconciliation agreements, which in some cases have involved forcibly evicting Coptic Christians from areas where they are under threat.[104]

   [103] Amnesty International, “Egypt: Government mut protect Coptic Christians targeted in sstring of deadly attacks in North Sinai” 1 March 2017 ibid

9. Nevertheless, in 2020 the U.S. Commission on International Religious Freedom (USCIRF) removed Egypt from its recommended category of “Countries of Particular Concern (CPC),” its list of the world’s worst religious persecutors.[105] It recommended that it be added to the State Department's Special Watch List (SWL). Countries on the SWL are those whose governments tolerate or engage in severe religious freedom violations, but do not rise to the CPC standard of ‘systematic, ongoing, and egregious.’[106]

   [105]  Religion Unplugged, ‘Are Egypt’s Copt Christians Persecuted? Why some Copts say no.’ by Paul Marshall 15 January 2021; http:religionunplugged.com/news/2021/1/15/are-egypts-christians-persecuted-why-copts-say-no

   [106] ibid

10. The DFAT report 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. It’s reported[107] that Coptic Christians face an uncertain future in Egypt, as the country’s authorities have consistently failed to protect them from the bigotry and prejudice of extremist Islamists. Nevertheless, its reported that Egypt’s majority Muslim population has mostly lived in harmony with the Christian minority for centuries.

    [107] Inside Arabia ‘The Copts: Egypt’s Overlooked and Persecuted Minority.’ by Soukaina Rachidi dated 29 April 2019; http:insidearabia.com/copts-egypt-overlooked-persecuted-christian-minority/

11. Based on the applicant’s evidence and available country information the Tribunal accepts that the applicant may be subjected to social discrimination if he is returned to Egypt.  However, based on the country information the Tribunal does not accept such discrimination amounts to serious harm as claimed. As such the Tribunal finds that there is no real risk the applicant would be seriously harmed as a Coptic Christin if he is returned to Egypt.

Applicant’s economic circumstances

1. The applicant is an elderly man with limited financial resources. His application indicated that he obtained a Bachelor [degree] in 1970 and preformed his military service for 1970 to 1975. However, the applicant no longer works and is in poor health. His wife passed away in 2022 and he currently resides with his son on whom he is financially dependent. Both his children now live and reside in Australia. The applicant’s only remaining family in Egypt are elderly and unable to support him if he returned to Egypt. As such, it was open to the applicant to claim that as an elderly person without a home, or the capacity to earn a living, he will suffer serious harm if he is returned to Egypt. That is, he will suffer economic hardship to the extent that it would threaten his capacity to subsist, constituting serious harm.[108] 

   [108] Section 5J(d) of the Act.

2. The applicant is in poor health and has provided the Tribunal with several medical reports that state he suffers from renal failure, diabetes, hypertensive nephrosclerosis and gout (the medical conditions) [109] and that he is receiving medication in relation to his conditions. Based on the medical reports provided by the applicant to the Tribunal accepts that he suffers from the medial conditions as claimed. There was no evidence that the applicant was privately insured for health cover in Egypt or that he was able to access private health insurance. For the information provided by the applicant in his application it appears that if he is returned to Egypt, he would not be in the position to obtain medical insurance in Egypt. Based on the evidence provided the Tribunal finds that he would not be able to access medical insurance in Egypt if he was returned.

   [109] Medical Report [deleted] Heath dated 26 February 2016, 3 April 201812 April 2017, 26 May 2016, 23 January 2018, 8 October 2018, 15 April 2019

3. The country information[110] reports that the Egyptian health care system is governed by the Ministry of Health and Population which is divided into the public and private sector. The public sector comprises the government and quasi-governmental organizations such as the Health Insurance Organization (HIO) and the Curative Care Organization (CCO). The HIO was originally created as an umbrella organization to provide all Egyptians with health coverage and care.[111] The four broad classes of beneficiaries under HIO are all employees working in the government sector, some public and private sector employees, pensioners, and widows.[112] However, HIO only covers 60% of the population and provides basic coverage through their own hospitals and clinics. The public health system faces many challenges such as underfunding, low-quality care, lack of medical equipment, and lack of qualified personnel. Government investment in the public system is also low with only 1.5% of total GDP for public health expenditures.[113] Total health expenditures for all sectors is 4.75% of national GDP.[114]  It’s reported[115] that due to the low standards of care in public facilities, many Egyptians seek care in private facilities if they can afford it. As a result, the health system is becoming more privatized as Egyptian citizens rely on insurance coverage through private insurers with government support to cover the costs of treatment.

   [110] Columbia University Irving Medical Centre, Mailman School of Public Health-Egypt hppt:/publichealth.columbia.edu/research/others/comparative-health-policy-library/egypt-summary#:~:text=Egyptian%20citizens%20are%20able%20to,for-profit%20hospitals%20and%20clinics.

   [111] bid

   [112] ibid

   [113] ibid

   [114] ibid

   [115] ibid

4. The social security system in Egypt includes social insurance, health insurance, and social assistance mechanisms. The system was developed in the 1950s and 1960s and remains in place today without any major reforms.[116] The expansion of social welfare in Egypt during this time relied heavily on the growth in government employment and the extension of social protection benefits to public sector employees. It is reported, however, that the system proved to be unsustainable, leading to a sharp reduction in public employment in the 1990s.[117]  The casualisation of the labour market and the contraction of social insurance coverage, combined with the failure of social assistance programs to access the poor, have brought into question Egypt’s ability to provide basic welfare to its citizens. [118]

   [116] Gender and Work in the Mena Region Working Paper Series, Social protection in Egypt: A policy overview by Maia Sieverding and Irene Selwaness September 2012 ibid.

   [118] ibid.

5. The country information reports that Egypt has an aging population, placing increasing strain on the country’s socio-economic system. As a result, it is reported that Egypt’s welfare system has failed to protect individuals from falling into poverty.[119]  The weakness of Egypt’s welfare system has caused the majority of the aging population to be either fully or partially dependant on their family for support. [120] Approximately  63 percent  of  men  in Egypt aged  65  years  or  older  receive  a retirement or social pension, while for women in the same age-class the share reaches only 41 percent. Due to their higher participation rate men are entitled to receive higher retirement pensions than women. While older women tend to have a greater need for public welfare resources are less likely to access the pension, and more likely to rely on their family for support.

   [119] ibid.

   [120] ibid.

6. It is reported[121] that more elderly Egyptians are living alone, causing more to live in poor conditions. There has been an increase in the number of nursing homes in Egypt over the last 20 years. There are approximately145 homes and 200 elderly care organisations. The living condition vary from cramped apartments to palatial suburban homes. However, its estimated that these homes only service about two (2) percent of the population. [122] As a result, care dependency has become a problem in Egypt, especially for lower- and middle-class members, due to economical restrictions and lifestyle changes. [123] As such, despite the efforts by the government, there are no tangible changes in the services offered to the elderly population in Egypt. Its reported[124] that there is a lack of service provision and a lack of awareness towards geriatric care service in Egypt. Urbanization and the change in the Egyptian demographics are exacerbating the problem. It’s claimed that Egypt now is becoming a nation of dignified older citizens that need additional care and special attention.[125]

   [121] RESEARCHGATE, ‘OLD AGE AND INEQUALITIES IN EGYPT. THE ROLE OF INTERGENERATIONAL RELATIONSHIPS AND TRANSFERS WITHIN THE FAMILY, JUNE 2013; American Chamber of Commerce in Egypt, ‘Elderly Care On The Rise’ By Maryclaire Abowdwww.amcham.org.eg/publications/business-monthly/issues/115/July-2009/118/elderly-care-on-the-rise.

   [123] PUB MED.GOV, AGEING, CARE DEPENDENCY, AND CARE FOR OLDER PEOPLE IN EGYPT: A REVIEW OF THE LITERATURE DATED 14 SEPTEMBER 2005  BY THOMAS BOGGATZ ¹, THEO DASSEN; HHTP://PUBMED.NCBI.NLM.NIH.GOV/16083486/.

   [124] The American University in Carrio, ‘Vulnerable Older Populations Without Special Healthcare in Egypt: A need for Assessment & Reform’ 2019 by  Dr. Mahmoud Nassar, Dr. Sally Islam, Dr. Shaimaa Sabbah, Dr. Sondos Saied Mubarak; ibid

The applicant is an elderly person in poor health with only limited financial resources, no home, limited skills, and no family support if he is returned to Egypt. The prospect of him obtaining employment in Egypt to the extent that he would be able to support himself is extremely unlikely. The applicant is not able to support himself to the extent that he would be able to access proper health services ot meet his basic needs. Based on the available country information, as an elderly person his ability to access social welfare in Egypt is limited.  While the Tribunal has found that there is no real chance that the applicant would be harmed because of his son’s involvement in the [event] as claimed, it has found that as a Coptic Christian the applicant would be subjected to a degree of societal discrimination. As such the Tribunal accepts that there is a real chance the applicant will be subjected to discrimination as a Coptic Christian in relation to his access to health services. As an elderly person who is unable to earn an income any discrimination he suffers as a Coptic Christian is likely to have a significant impact on his ability to access welfare (including medical) services in Egypt. Therefore, based on the available country information the Tribunal finds that he would not be able to access health and other services if he is retuned to Egypt. In addition, as an elderly person with poor financial resources the tribunal finds that he would not be able to afford private health services and as a result would be denied   access to such services. Therefore, as an elderly person with no income and in poor health the Tribunal finds on a cumulative basis that there is a real chance he would be seriously harmed if he is returned to Egypt by being denied access to social security and health services to the extent that he would suffer such hardship that he would not be able to subsist.

Therefore, based on the country information and the applicant’s own evidence the Tribunal finds that there is a real chance that the applicant will suffer serious harm to the extent that it he will not have the capacity to subsist. As such, the Tribunal finds that there is a real chance the applicant will suffer serious harm by reason of his failure to subsist if he is returned to Egypt.

CONCLUSION

1. The Tribunal finds that [the first applicant] passed away [in] April 2022 and as such the Tribunal no longer has jurisdiction to decide her review application.

2. The Tribunal finds that if the applicant is removed from Australia to Egypt, there is a real chance that he will suffer serious harm by reason of him suffering economic hardship to the extent that he will not have the capacity to subsist.

3. Therefore, having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, because of being removed from Australia to Egypt, there is a real chance that the applicant will suffer serious harm because of his economic circumstances. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s 36(2)(a) for a protection visa and as such he is a person in respect of whom Australia has Protection obligations under the Act.

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

DECISION

1. The Tribunal has no jurisdiction in relation to [the first applicant].

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

Jason Pennell
Senior Member

Annexure ‘A’

RELIGION

3.2 No official statistics exist in relation to the breakdown of Egypt’s religious population. While estimates vary, most observers agree that Sunni Muslims comprise approximately 90 per cent of the population, Coptic Christians make up between eight and ten per cent, and the remainder consists of small numbers of other religious minorities, including Shi’a Muslims, Sufi Muslims (officially considered Sunni) non- Coptic Christians, Baha’i, and Jews. The government officially recognises three religions: Islam, Christianity, and Judaism.

Religious Conversions

3.7There is no statutory prohibition in Egypt on converting from one religion to another. In order to convert to Christianity, authorities require documents from the receiving church, identity documents and fingerprints. Checks are also made on criminal history as conversion often requires a change in name. Converts to Islam will generally have their conversions recognised and their identity cards changed accordingly without difficulty or delay. However, courts and government officials have generally interpreted sharia as prohibiting conversion from Islam. Authorities have at times reportedly refused to recognise such conversions, including through failing to amend a convert’s national identity card (and corresponding record) to reflect their chosen faith. This has significant ramifications for personal status issues, such as marriage and divorce, and the state’s view of the religious identity of any children born to a convert. Egyptian children obtain a national identity card at age 16, with their religious identity matching that of their parents (their Muslim parent, in the case of a mixed marriage between a Muslim man and Christian woman).

3.8A 2011 court ruling allowed Christians who converted to Islam and then back to Christianity (generally in order to more easily access divorce) to amend their identity cards to reflect their return to their original faith. DFAT understands, however, that only a small number of such individuals have been permitted to do so, and that several thousand others are still waiting to have their cards changed back.

3.9Converts from Islam to other religions are not generally subject to officially sanctioned violence, detention or surveillance. However, they face significant societal discrimination in the form of rejection, ostracism and sometimes violence from their families or communities. Such discrimination is worse in poorer and rural areas, which tend to be more socially conservative. The level of discrimination is likely to be higher if the convert engages in proselytization.

3.10DFAT is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam. Such reports have occasionally led to increased tensions and clashes between Christian and Muslim communities, particularly when the alleged abductions involve family members of Christian priests. However, there is little evidence to suggest that forced conversions occur as a regular phenomenon. DFAT assesses that most religious conversions in Egypt occur either to enable a person to marry someone from another faith, or to access divorce.

3.11DFAT assesses that a person converting from Islam faces a moderate risk of official discrimination. They may experience difficulties in having their conversion officially recognised, including on national identity cards, which may affect their ability to access government or religious services. DFAT assesses that a person converting from Islam faces a high risk of societal discrimination in the form of rejection, ostracism and possible violence from their families and communities.

Terrorist Attacks on Christians

3.21In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark’s Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks.

Communal Violence

3.22Most 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.

3.23A 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.

3.24The 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.

3.25Egyptian 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.

3.26DFAT 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.

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.

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.

3.35 Minority Rights Group International estimates that there are between 1000 and 1500 Jehovah’s Witnesses living in Egypt. Although the denomination is not officially recognised, authorities permit its members to meet privately in gatherings of fewer than 30 people). Jehovah’s Witnesses are banned from importing religious literature such as Watchtower publications, which are a key part of religious instruction and practice for Witnesses.

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.