1613162 (REFUGEE) [2019] AATA 6852 (6 NOVEMBER 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1613162
COUNTRY OF REFERENCE: Egypt
MEMBER:Peter Vlahos
DATE:6 November 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 06 November 2019 at 5:27am
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Christian – particular social group – Egyptian Coptic Christians – Evangelical Baptist – missionary worker in Muslim countries – fears harm from ultranationalists and religious fanatics – past discrimination and persecution – family members targeted – lack of protection from Egyptian authorities – relocation in home country not feasible – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abede v The Commonwealth of Australia (1999) 197 CLR 510
Alamdar v MIMA [2001] FCA 1244
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 29
Lama v MIMA (1999) 57 ALD 613
MIEA v Respondent A and B (1995) 57 FCR 309
Wang v MIMA (2000) 105 FCR 548
Weheliye v MIMA [2001] FCA 1222
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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Egypt, applied for the visa on 4 March 2014. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy subsection 36(2) of the Migration Act.
On 8 June 2016 the applicant made an application to the Tribunal to review the Department’s decision to refuse him a Protection visa.
The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an Arab interpreter.
The applicant was represented by his legal counsel and registered migration agent.
CRITERIA FOR A PROTECTION VISA
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, he or she 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…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a national of Egypt, claimed to fear persecution due to her religious identity as a Coptic Christian and her work as a missionary. The dispute centred on whether Australia had protection obligations towards the applicant under the Migration Act 1958 (Cth).
The Tribunal was required to determine if the applicant met the criteria for a refugee under section 36(2)(a) of the Act, specifically whether she had a well-founded fear of persecution for reasons of religion, membership of a particular social group, or political opinion, and if effective protection was unavailable in Egypt. Additionally, the Tribunal considered whether Australia had protection obligations under section 36(2)(aa) of the Act, which concerns the risk of significant harm if removed from Australia.
The Tribunal accepted the applicant's identity and nationality as Egyptian. It considered the applicant's evidence regarding past discrimination and persecution faced by Christians in Egypt, including attacks on churches, lack of protection from authorities, and threats to family members. The Tribunal also had regard to country information concerning the religious and political climate in Egypt, including the challenges faced by Coptic Christians and the prevalence of ultranationalist and extremist groups. Based on the evidence presented and the relevant legal provisions, the Tribunal concluded that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion for a refugee under section 36(2)(a) of the Migration Act.
The Tribunal was required to determine if the applicant met the criteria for a refugee under section 36(2)(a) of the Act, specifically whether she had a well-founded fear of persecution for reasons of religion, membership of a particular social group, or political opinion, and if effective protection was unavailable in Egypt. Additionally, the Tribunal considered whether Australia had protection obligations under section 36(2)(aa) of the Act, which concerns the risk of significant harm if removed from Australia.
The Tribunal accepted the applicant's identity and nationality as Egyptian. It considered the applicant's evidence regarding past discrimination and persecution faced by Christians in Egypt, including attacks on churches, lack of protection from authorities, and threats to family members. The Tribunal also had regard to country information concerning the religious and political climate in Egypt, including the challenges faced by Coptic Christians and the prevalence of ultranationalist and extremist groups. Based on the evidence presented and the relevant legal provisions, the Tribunal concluded that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion for a refugee under section 36(2)(a) of the Migration Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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 The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of origin for Convention reasons Based on copies of the applicant’s passport, which were provided to the Department and the Tribunal[1] at the hearing, the applicant oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and her claims gave been assessed against that country in relation to ss.36(2)(a), the refugee provision and s.36(2)(aa) the complementary protection criteria of the Act. On this basis, taking into consideration the above-mentioned evidence, the Tribunal further finds and accepts the applicants’ identities as claimed.[1] AAT File The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred in the delegate’s decision.[2] The applicant provided a copy of the Department’s record of decision to the Tribunal with her review application.Applicant’s Migration History[2] Ibid Folio [25] et.al On 5 April 1994 the applicant was granted a [temporary] visa, which was valid until 5 April 1995. [In] May 1994 the applicant arrived in Australia and [in] September 1994 she departed Australia. On 28 September 2011 the applicant applied for a [Tourist] visa and that visa was refused on 3 October 2011. On 17 October 2012 the applicant applied for a [Tourist] visa and that visa was refused by the Department on 25 October 2012. On 22 September 2013 the applicant applied for a further Tourist visa and on 21 October 2013 she was granted a [Visitor] visa which came into effect until 6 March 2014. [In] December 2013 the applicant arrived in Australia. On 4 March 2014 the applicant applied for a Protection visa (XA 866). The applicant’s claim for Protection The applicant made the following written claims to Department in support of her application for a Protection visa:·The applicant is a [female] born in the city of Cairo, Egypt. She has resided in [City 1], Port Said, Egypt. She speaks and reads Arabic and converses and writes in the English language but to a limited degree. ·The applicant’s freedom to practice her religion has been/and will be violated – for example, a church was attacked by gunfire and people stopped attending due to safety fears, a police car in front of the church was set on fire. ·The authorities in Egypt cannot protect them (Christians) because the country is in chaos – no protection from police as they are under threat themselves – cannot relocate, because the whole country is unsafe. ·The applicant’s mother and cousins are all threatened in Egypt and face the same issues as the applicant – which affects her career and livelihood as she cannot move freely or travel. Her [relative] was also persecuted in October 2013, two men on motorcycles stopped and started shouting verbal abuse at her, and she was grubbed by the passenger. ·This incident had affected the applicant emotionally and mentally. The applicant constantly worries about her mother’s and her own safety, and takes medication for stress. ·The ‘barbaric’ behaviour and ‘terrorism’ practiced by Islamic groups amounts to ‘genocide’ of Coptic Christians in Egypt.[3]·There is no justice for the Coptic/Christians in Egypt. The authorities have not provided protection for her in the past and she will not be safe if she returns to Egypt. ·The Military supreme council is ruling the country – total breakdown of law and order in Egypt.[4]·Kidnapping, sexual abuse and forced conversion of Christian women is an epidemic. Copts are treated as second class citizens by the government and Islamic groups. If the applicant returns, she will encounter further persecution and forced to convert to Islam if she does not, she will be killed or assaulted·Recent catastrophic events in the political, social and economic environment of Egypt have had a destructive effect on her emotional wellbeing. The applicant feels vulnerable, distressed and disturbed. What was the Department’s treatment of the applicant’s claims?[3] On 24 November 2010 Egyptian security forces launched an attack against Coptic Christians at Al Omrania (Giza) to stop the construction of a church building. Two Coptic Christians were killed by the police. In 2011- in Maspero, army tanks drove over unarmed Christians and 26 people were killed. No investigation was conducted – indicating that the then ruling regime was involved. [4] The Fall of Mubarak and Morsi regimes have left the country with little to no law enforcement and sparked hatred against Christians. Muslims freely revenge without fear of prosecution. Sharia Law will be enforced on everyone. The applicant cannot live in a country where her basic human rights, including religious freedom, are impugned and obscene laws imposed on her.
Decision
Reasons for decision
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and therefore the applicants satisfy the criterion for a refugee set out in s.36(2)(a) of the ActDECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36 (2) (a) of the Migration Act.Peter VlahosMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(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.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…APPENDIXUpdated Country Information Egypt[70] [70] DFAT Country Information Report, Egypt, 17 June 2019RELIGION 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. Personal Status Laws 3.3 Religion is central to identity in Egypt. Egypt’s constitution states that Islam is the state religion, and the principles of sharia are the primary source of legislation. Article 64 of the constitution states that ‘freedom of belief is absolute’. Religious institutions of the three recognised religions (Islam, Christianity and Judaism) are responsible for personal status issues such as marriage, divorce and inheritance. Muslim personal status laws derived from sharia are reflected in legislation. Family Courts apply this legislation to Muslim couples; Muslims married to Christians, and married couples who belong to different Christian denominations (see ‘Christians’). For Christians and Jews, the religious authorities themselves adopt personal status rules, based on relevant religious doctrine. These rules are considered equivalent to administrative decisions, and are subject to review in Egyptian courts. The Personal Status Laws are currently undergoing a review process, but it is unclear whether this will result in any significant change from the status quo. 3.4 Recent court rulings have allowed Egyptians belonging to unrecognised religions, such as Baha’i, or unrecognised Christian sects (see Christians) such as Jehovah’s Witnesses, to have a dash ( - ) recorded against the religion field in their identity documents. Members of these groups, however, may still face difficulties in relation to personal status issues due to the lack of a civil alternative. 3.5 Egypt is a socially conservative country, and very few couples live together outside of marriage in both urban and rural areas. The state administers marriages between Muslims in accordance with Muslim personal status laws. Christians and Jews must seek marriage under their respective religious institutions before obtaining a marriage contract from the state. All marriages must be registered with the Ministry of Justice, which issues official marriage certificates. According to sharia (as interpreted by Egyptian courts), a Muslim man can marry a non-Muslim woman without her having to convert to Islam. A Muslim woman, however, can only marry a non-Muslim man if he converts to Islam. Some Christian denominations will reportedly marry Christians from different denominations without requiring one party to convert, but most, including the Coptic Orthodox Church, will generally only marry couples from the same denomination. 3.6 There is no civil marriage in Egypt, and all religious authorities are strongly opposed to the concept. Civil marriages of Egyptians abroad are recognised in Egypt only when they comply with Egyptian personal status laws. For example, if a Muslim woman married a Christian man in a civil marriage in Australia, it would not be recognised in Egypt. Likewise, Egypt would not recognise a same-sex marriage. Blasphemy/Defamation of Religion 3.12 Article 98(f) of the Egyptian Criminal Code provides for prison sentences of up to five years and/or fines of up to EGP1000 ($AU145) for ‘exploiting and using religion in advocating and propagating extremist thoughts with the aim of instigating sedition and division or disdaining and contemplating any of the heavenly religions, or prejudicing national unity or social peace’. Articles 160 and 161 proscribe various acts connected with religion, including disturbing religious ceremonies, violating the sanctity of religious buildings or cemeteries, printing adulterated versions of holy books, or imitating religious ceremonies for the purpose of ridicule. 3.13 Courts of general jurisdiction (see ‘Judiciary’) hear defamation of religion cases. While the Misdemeanour Courts hear most cases, the Criminal Courts may have jurisdiction if the charge is serious enough to involve a potential term of imprisonment. It is common for cases to last over a year, and for proceedings to be postponed repeatedly. The Public Prosecution Office places charges, which may occur after a lawsuit is filed, a private citizen files a complaint, or the state itself files a case. A conviction under Article 98(f) can result in a prison sentence of up to five years, and/or a fine. 3.14 Before the 2011 Revolution, defamation of religion cases were rare. The number and frequency of charges rose considerably under the Morsi government, and this trend has continued under Sisi. A January 2015 decree permitted the government to ban any foreign publications deemed offensive to religion, and Article 98(f) has been used against an increasingly wide range of groups across the country, including atheists, Christians (including converts from Islam), and artists. The increased use of social media has reportedly been a contributing factor in the rise of such cases: more people have had visibility of potentially controversial material, and so the number of complaints has risen accordingly. 3.15 According to the US Commission on International Religious Freedom (USCIRF), there were 15 known ongoing cases and investigations under Article 98(f) in 2017, an increase from 2016. Many of the cases involved expression on social media. The majority of charges filed have been against Sunnis, including a cleric who was sentenced to five years’ imprisonment in February 2017 for questioning various interpretations of Koranic texts on Facebook. The majority of those sentenced to prison terms, however, have reportedly been non-Muslims. 3.16 DFAT understands that those accused of blasphemy rarely have an adequate defence counsel. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases. Construction and Restoration of Churches 3.17 Church building is one of the most sensitive communal issues in Egypt. It has traditionally been very difficult to build a new church in Egypt, as local authorities have imposed convoluted processes to request permission and then ultimately refused the building permit. In contrast, the law does not stipulate any government role in reviewing the number or size of mosques, and no approval is required for mosque renovation. DFAT understands that there are approximately 2,800 registered churches throughout Egypt, compared to nearly 110,000 mosques. 3.18 In August 2016, the parliament passed law 80/2016 required by Article 235 of the constitution to allow Christians to build and renovate churches. The law requires the size of a church to be ‘commensurate with’ the number of Christians in the area. Because there are no official statistics in relation to the size of religious communities, determining the size of local Christian communities is difficult and most likely arbitrary. The power to approve requests is exercised by local governors, who must respond to a request to build or renovate a church within 120 days. Refusals must include a written justification. There are no appeal mechanisms. 3.19 Local contacts have reported that the 2016 law was welcome, but that implementation at the local level had been problematic in some areas. These contacts reported that the Coptic Church had presented requests for over 2,500 existing unlicensed churches and affiliated buildings following the passing of the law, but (as of October 2018) authorities had only approved around 200 applications. Local sources report that authorities had refused to grant permits in sensitive areas (including the Upper Egypt cities of Minya, Luxor, and Esna) due to strong opposition from local Muslims, and had closed up to 12 churches in these cities in defiance of the new law. In less sensitive areas, however, authorities had granted permits for around 50 new churches to be built and had made large areas of previously uninhabited land available. The Ministry of Housing also reportedly issued an order in January 2018 permitting Christians to practice their religious rites at unlicensed churches pending the legislation of their status. Local media and some international religious publications have reported that the government has recently approved the construction of up to 170 new churches. President Sisi inaugurated a new cathedral outside Cairo in January 2019 (the largest cathedral in the Middle East). 3.20 The government has rebuilt a number of churches and other church-owned properties destroyed or damaged in mob violence in 2013. The Saints Peter and Paul Church in Cairo was also repaired after a December 2016 suicide bombing that killed 29 people (see Security Situation). The government has funded a church in al-Our village in Minya in honour of 20 Copts beheaded by an Islamic State-affiliated militant in Libya. In Alexandria, the main synagogue is undergoing extensive renovations paid for by the Egyptian Government (estimated USD $5 million) with a renovation team comprised of technical specialists. Terrorist Attacks on Christians 3.21 In 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 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. 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. 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. 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. 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. 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. Muslim Brotherhood 3.52 The Muslim Brotherhood (‘the Brotherhood’) is an Islamist religious, political and social movement founded in 1928. The Brotherhood has traditionally represented the primary political opposition to Egypt’s military rulers, despite being prevented for the most part from participating in formal politics and being subjected to intermittent (and often violent) crackdowns. Although the Brotherhood did not play a significant role in the 2011 revolution, it took a more assertive role afterwards. Since the July 2013 military intervention that removed President Morsi from office (see Recent History), Egypt’s security apparatus and courts have carried out a significant crackdown on the Brotherhood’s members and activities. 3.53 The Interim Cabinet declared the Brotherhood a ‘terrorist organisation’ under Article 86 of the Criminal Code in December 2013. Under Article 86, membership of a designated terrorist group may incur penalties of up to five years’ imprisonment. Article 86 also criminalises the distribution of materials, in writing or in speech, pertaining to a proscribed organisation or in service of its objectives. Tens of thousands of Brotherhood members have been arrested and detained since July 2013. Key members of the Brotherhood senior leadership have been in detention since the July 2013 military intervention, and much of the leadership has fragmented. According to his family, Morsi has been held in solitary confinement since being overthrown in 2013. He is currently serving a number of lengthy prison sentences, and has had at least one death sentence overturned. 3.54 Courts throughout the country have handed down a series of harsh sentences (including the death penalty) in mass trials of those charged with participating in violent protests or riots following the military takeover (see also Death Penalty). In September 2018, a court handed down 75 death sentences and 47 life sentences against Brotherhood members, including the spiritual leader of the organisation, Mohamed Badi. Although the large-scale crackdown on the Brotherhood has largely concluded, arrests of Brotherhood members continue: on 29 January 2019, authorities arrested 54 members of the group over charges of planning to carry out hostile actions against state institutions on the anniversary of the 2011 Revolution. 3.55 DFAT understands 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. In September 2018, an Egyptian judicial committee announced that it had frozen the assets of 1,133 charities allegedly connected to the Brotherhood. The committee additionally announced the freezing of the assets of some 118 companies, 104 schools, 69 hospitals, 33 websites and satellite channels, and 1,589 Brotherhood members. 3.56 In-country sources report that the government and state media consistently blame the Brotherhood (and terrorism) for all manner of domestic woes: the head of the National Football Federation blamed the group for the national football side’s disappointing performance at the 2018 World Cup in Russia, for example, while media suggested that the Brotherhood was behind a train crash at Cairo’s main railway station in February 2019 that killed 22 people (caused by a negligent conductor). While there is a degree of (unexpressed) public cynicism about this practice, it has reportedly created a social environment whereby any affiliation or connection with the Brotherhood – or any attempt to express political dissent (see Political Opinion (Actual or imputed)) – is considered evidence of supporting terrorism. This has resulted in a number of arbitrary arrests, prosecutions, and dismissals – in one case, the son of a non-politically active Brotherhood member was reportedly dismissed from his job in a regional hospital for ‘supporting terrorism’. 3.57 Analysts report that the Brotherhood has undoubtedly been weakened by the government’s broadly applied crackdown, and the movement has been driven underground. Broad popular support for the Brotherhood was reportedly damaged considerably by the incompetence demonstrated by their year in power, reinforced by years of anti-Brotherhood propaganda under Sisi. They note, however, that the Brotherhood retains a core support of up to 20 per cent of the population, strengthened by feelings of victimisation after the crackdown. As in the past, the restriction of all other avenues for political and social organisation (political parties, unions, universities, civil society, and media; see relevant sections) has left Egypt’s tens of thousands of mosques as the only meeting place left, and religion the only social outlet. Brotherhood satellite channels broadcasting from Turkey are reportedly popular in Egypt, offering the only opposition voice accessible to the public. 3.58 DFAT assesses that Muslim Brotherhood leadership figures and members who continue to pursue political activities actively either within or outside the party structure are highly likely to be arrested and prosecuted. Ordinary inactive members, party supporters and those with family links to members are less likely to be personally targeted, but still face a risk of arrest, prosecution, or dismissal from state employment should their affiliations become known to authorities. All persons with MB links are likely to be subjected to surveillance and monitoring of their activities. Violence against Women 3.81 Rape, sexual harassment, and other forms of sexual and gender-based violence are all strongly prevalent in Egypt. A 2017 survey by the Thomson Reuters Foundation found Cairo the world’s most dangerous megacity for women. 3.82 Article 267 of the Criminal Code makes rape a crime punishable by death. The legal definitions for rape and sexual assault are weak, however, and rape within marriage is not a crime. Women’s rights activists estimate that tens of thousands of incidents of rape occur annually, very few of which result in conviction. Human rights observers report that authorities generally treat allegations of rape and sexual assault as a ‘social nuisance’ rather than a crime to be prosecuted, and rarely make serious attempts to prosecute those responsible for sex crimes. 3.83 Sexual harassment is a frequent occurrence for women across the socio-economic spectrum. A 2013 UN Women study found 99.3 per cent of Egyptian women had experienced sexual harassment, while 91.5 per cent reported experiencing unwanted physical contact. The study found that most sexually assaulted women would not report the crime to the police or tell their families. Those who do make reports sometimes face retaliation from perpetrators or even their own families, who may blame them for provoking the assault or for bringing shame on the family. Sexual harassment was found to be particularly prevalent during mass street celebrations such as religious feasts, or political demonstrations. State officials and members of parliament have sometimes blamed victims of sexual violence because of their “revealing clothing”. 3.84 Decree 50/2014 criminalised sexual harassment for the first time, providing for prison sentences of up to five years, and parliament imposed higher penalties for sexual harassment in December 2017, including fines of up to 10,000 Egyptian pounds (about $750 AUD). There have been some instances in which authorities have successfully prosecuted perpetrators of sexual harassment: nine men received lengthy prison sentences in July 2014 for participating in mob sexual assaults, and a man received a five-year sentence in April 2015 for sexually harassing a woman on public transport in Cairo. However, such prosecutions and sentences remain rare. Authorities have instead taken action against individuals and groups who have spoken out on the issue. For example, in May 2018 authorities arrested an activist who had posted a video on Facebook which spoke about the prevalence of sexual harassment and criticised the government’s failure to protect women. In September, a court sentenced the activist to two years’ imprisonment for publishing false news, and fined her EGP10,000 (AUD795) for making public insults. The activist continues to face charges in a separate case of belonging to a terrorist organisation. Human rights observers report that several other women’s’ rights groups and activists also face criminal charges in relation to their activism, with a number of activists subject to travel bans.3.85 Domestic violence is prevalent and commonly accepted across religious communities and socio- economic levels: a 2017 UN Women survey of gender attitudes found that 90 per cent of Egyptian men and 71 per cent of women agreed with the statement that wives should tolerate violence to keep the family together. In-country sources report that domestic violence rates have risen in line with widespread frustration over economic austerity measures (see Economic Overview). Socio-economic factors can make it difficult for a woman to escape a violent relationship: attempting to do so in conservative or rural areas will usually result in communal and familial ostracism. 3.86 Very limited services are available for women seeking to escape domestic violence: only eight government-run shelters operate nationwide (in Cairo, Giza, Qalyubia, Alexandria, Beni Sueif, Fayoum and Minya). These shelters provide social, family, and psychological counselling, along with referrals to other service providers. According to human rights observers, the shelters focus primarily on reconciling women with their abusive husbands, and tend to shelter women on a limited basis. The shelters are poorly resourced and advertised, and they apply rules and procedures that greatly limit their accessibility and utility to survivors of domestic violence. For example, unmarried women (including those perceived not to be virgins), those seeking divorce, and those with children are all precluded from accessing them. In-country sources report that attempts by civil society organisations to set up private shelters have been prevented by court orders or other legal proceedings against their activities. 3.87 There are no reliable statistics available regarding the incidence of killings and assaults motivated by ‘honour’ – these are not specifically addressed in the Criminal Code, and are considered as any other crime. Several articles of the Criminal Code in effect condone the committing of such crimes, including Article 17, which provides for reduced sentences in light of mitigating circumstances; Article 60, which does the same for offences committed in good faith of a sharia right; and Article 237, which provides for reduced sentences when a husband surprises his wife in the act of adultery and kills her. Human rights observers report that the practice of honour killings is more common in rural areas, with some incidences officially categorised as suicides or accidents. 3.88 Underage girls, particularly those from rural areas, are vulnerable to early or forced marriage. The government’s official statistics agency reported in 2017 that 118,904 girls in Egypt were under 18 when they married, and 18,127 were under the age of 16. The Ministry of Health has reported that 500,000 are born every year to underage mothers. Some early marriages are temporary arrangements designed to mask child prostitution, known colloquially as ‘tourism’ or ‘summer’ marriages. These ‘marriages’ involve wealthy foreign men (generally tourists from the Gulf States) purchasing young girls for the purpose of sexual exploitation, with the transaction often facilitated by the girl’s family. The Ministry of Justice introduced measures in December 2015 to discourage such arrangements, but refrained from eliminating the practice altogether. 3.89 DFAT assesses that the majority of Egyptian women, regardless or religion or socio- economic status, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and the workforce. DFAT assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence. Activists who criticise government failures in relation to gender violence are likely to face arrest and prosecution in relation to their activism
Ratio Decidendi
Legal Principle Established
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of origin for Convention reasons Based on copies of the applicant’s passport, which were provided to the Department and the Tribunal[1] at the hearing, the applicant oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and her claims gave been assessed against that country in relation to ss.36(2)(a), the refugee provision and s.36(2)(aa) the complementary protection criteria of the Act. On this basis, taking into consideration the above-mentioned evidence, the Tribunal further finds and accepts the applicants’ identities as claimed.[1] AAT File The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred in the delegate’s decision.[2] The applicant provided a copy of the Department’s record of decision to the Tribunal with her review application.Applicant’s Migration History[2] Ibid Folio [25] et.al On 5 April 1994 the applicant was granted a [temporary] visa, which was valid until 5 April 1995. [In] May 1994 the applicant arrived in Australia and [in] September 1994 she departed Australia. On 28 September 2011 the applicant applied for a [Tourist] visa and that visa was refused on 3 October 2011. On 17 October 2012 the applicant applied for a [Tourist] visa and that visa was refused by the Department on 25 October 2012. On 22 September 2013 the applicant applied for a further Tourist visa and on 21 October 2013 she was granted a [Visitor] visa which came into effect until 6 March 2014. [In] December 2013 the applicant arrived in Australia. On 4 March 2014 the applicant applied for a Protection visa (XA 866). The applicant’s claim for Protection The applicant made the following written claims to Department in support of her application for a Protection visa:·The applicant is a [female] born in the city of Cairo, Egypt. She has resided in [City 1], Port Said, Egypt. She speaks and reads Arabic and converses and writes in the English language but to a limited degree. ·The applicant’s freedom to practice her religion has been/and will be violated – for example, a church was attacked by gunfire and people stopped attending due to safety fears, a police car in front of the church was set on fire. ·The authorities in Egypt cannot protect them (Christians) because the country is in chaos – no protection from police as they are under threat themselves – cannot relocate, because the whole country is unsafe. ·The applicant’s mother and cousins are all threatened in Egypt and face the same issues as the applicant – which affects her career and livelihood as she cannot move freely or travel. Her [relative] was also persecuted in October 2013, two men on motorcycles stopped and started shouting verbal abuse at her, and she was grubbed by the passenger. ·This incident had affected the applicant emotionally and mentally. The applicant constantly worries about her mother’s and her own safety, and takes medication for stress. ·The ‘barbaric’ behaviour and ‘terrorism’ practiced by Islamic groups amounts to ‘genocide’ of Coptic Christians in Egypt.[3]·There is no justice for the Coptic/Christians in Egypt. The authorities have not provided protection for her in the past and she will not be safe if she returns to Egypt. ·The Military supreme council is ruling the country – total breakdown of law and order in Egypt.[4]·Kidnapping, sexual abuse and forced conversion of Christian women is an epidemic. Copts are treated as second class citizens by the government and Islamic groups. If the applicant returns, she will encounter further persecution and forced to convert to Islam if she does not, she will be killed or assaulted·Recent catastrophic events in the political, social and economic environment of Egypt have had a destructive effect on her emotional wellbeing. The applicant feels vulnerable, distressed and disturbed. What was the Department’s treatment of the applicant’s claims?[3] On 24 November 2010 Egyptian security forces launched an attack against Coptic Christians at Al Omrania (Giza) to stop the construction of a church building. Two Coptic Christians were killed by the police. In 2011- in Maspero, army tanks drove over unarmed Christians and 26 people were killed. No investigation was conducted – indicating that the then ruling regime was involved. [4] The Fall of Mubarak and Morsi regimes have left the country with little to no law enforcement and sparked hatred against Christians. Muslims freely revenge without fear of prosecution. Sharia Law will be enforced on everyone. The applicant cannot live in a country where her basic human rights, including religious freedom, are impugned and obscene laws imposed on her.