1619674 (Refugee) - [2017] AATA 222

1619674 (Refugee) [2017] AATA 222 (5 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619674
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Giles Short
DATE:5 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 05 February 2017 at 4:20pm

CATCHWORDS
Migration – Cancellation – Protection visa – Egypt – Religion – Evangelical Church – s 107 notice – Incorrect answers in protection visa application – Applicant returned to Egypt – Family members kidnapped – Detention – Religious practices curtailed during visit
LEGISLATION

Migration Act 1958, ss 101(b), 107,109(1), 140, 438, r 2.41

Migration Regulations 1994 r 2.41
CASES
Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Briginshaw v Briginshaw (1938) 60 CLR 336
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
Minister for Immigration & Multicultural Affairs v Jalal (2000) 102 FCR 63
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
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

[The applicant] is a citizen of Egypt. He was granted a Subclass 866 (Protection) visa [in] July 2012. In his application for that visa he said that he was a Christian and that he feared that if he returned to Egypt he would be arrested by the police or harmed by Salafists. As referred to in the decision under review (a copy of which he provided to the Tribunal along with his application for review) [in] January 2014 [the applicant] left Australia indicating that he was going to Egypt and he returned to Australia [in] July 2014. In a notice issued under section 107 of the Migration Act 1958 [in] May 2016 a delegate of the Minister for Immigration informed [the applicant] that he considered that [the applicant] had not complied with paragraph 101(b) of the Migration Act, referring to the answers he had given in his application for a protection visa regarding his reasons for claiming protection. No issue arises in this review as to the validity of this notice. On [a date in] November 2016 the delegate cancelled [the applicant’s] protection visa and on 22 November 2016 [the applicant] applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. The issues in the review are whether there was non-compliance in the way described in the notice sent to [the applicant] and, if so, whether the Tribunal should exercise the discretion to cancel the visa.
As a preliminary matter there is a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act at folio 88 of the Department’s file [number]. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate ‘that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed’. The certificate relates to folios 1-8, 17-19, 29-35, 38-40, and 81-86 of that file. It states that the disclosure of this information would be contrary to the public interest because the folios in question ‘contain information relating to an internal working document and business affairs’. This certificate is clearly invalid and of no effect because the fact that the folios contain information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.[1] The documents in question are internal Departmental documents and printouts from Departmental information screens relation to the processing of the cancellation of [the applicant’s] visa. They are not relevant to this review.
[1] See MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [37] per Beach J.
There is also a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act at folio 76 of the Department’s file [number]. The certificate relates to folio 59 of that file, the disclosure of which it states would be contrary to the public interest because the folios (sic) ‘contain information relating to an internal working document and business affairs’. Once again, for the reason given in the previous paragraph, this certificate is clearly invalid and of no effect. The document in question relates to [the applicant’s] medical examination for his protection visa and is not relevant to this review.
There is also a notification made by a delegate of the Minister under paragraph 438(1)(b) of the Migration Act at folio 75 of the Department’s file [number]. That provision permits the Minister to notify the Tribunal that a document, the matter contained in a document, or information, was given to the Minister, or to an officer of the Department, in confidence. The notification relates to folio 54 of the file which it states should not be disclosed to [the applicant] or his representative because it contains documents affecting personal privacy. The folio in question is an ‘Interpreter Service Delivery Form’ relating to the interpreter used when [the applicant] was interviewed in relation to his application for a protection visa [in] May 2012. Once again this document is not relevant to this review. At the hearing before me on 19 January 2017 I advised [the applicant] of the existence of these two certificates and the notification and of my view that the two certificates were invalid. I also advised him that in my view none of the documents covered by these certificates or the notification were in any way relevant to this review
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the section 107 notice?
[The applicant’s] application for a protection visa
[The applicant] is aged in his [age range]. He has said that he comes from a village named [Village 1] in the province of Minya in Upper Egypt but that he moved to Cairo in 1994. In his application for a protection visa he said that before coming to Australia in October 2011 he had been self-employed as [an occupation 1] for around 18 years. His wife and their [number] children remained in Egypt when he came to Australia and he has said that his wife died [in] August 2014, [number] days after he returned to Australia from his visit to Egypt referred to above.
[The applicant] applied for a protection visa [in] December 2011 and in that application he said that he had spent most of his life devoted to assisting the church in Egypt through his work as [an occupation 1] and his service to Christian families. He said that as a result of his work he had encountered some problems with fundamentalist Muslims and with the authorities in the Minya area which was why he had relocated to Cairo.
[The applicant] said that in Cairo much of his work had involved the youth group: he had been involved in the organisation of camps, the preparation of the stage for church plays and the supervision of youth workers who had conducted repairs to church properties including churches. He said that in Cairo he had had difficulties with the Muslim population and also with the authorities in 2007, 2009, 2010 and 2011. He said that the difficulties in 2010 and 2011 had related to the building of a services hall. He said that he had been detained for [number] days. He said that in 2009 he had been involved in finding a woman who had been kidnapped by Muslim fundamentalists. He said that he had been questioned by the authorities and it had become clear to him that he had been on a watch list.
[The applicant] said that in 2010 he had assisted [two people] who had converted to Christianity and who had been baptised [in] January 2011. He said that he had been detained, questioned and ill-treated by the authorities. He also said that in May 2011 he had been visited at his home by Salafists who had terrorised him and his family and had broken all the holy icons in his house. He said that at the time he had left Egypt the police had told him that they had evidence to arrest him and that since he had been in Australia the police had gone looking for him once and the Salafists had come twice, terrorising his family who had now moved away from home. He said that he feared that if he returned to Egypt he would be arrested by the police or harmed by Salafists.
[The applicant] produced a letter in support of his application which is undated and is said to be from [Leader A] of [Church 1].[2] The letter said that [the applicant] had played a major role in the conversion of a Muslim man and woman, that he had been subjected to problems, pressures and threats from the police, Muslim Brothers and Salafists, that he was currently wanted by these groups, that his family were hidden with certain church members and that his children had been threatened and had stopped attending school.
The interview with the primary decision-maker
[2] [Deleted.]
[The applicant] was interviewed by an officer of the Department in relation to his application [in] May 2012. [The applicant] said that he was sure that everything in his application was correct, complete and up-to-date and that his application accurately reflected his claims for protection. He identified the church with which he had been involved in Egypt as the Evangelical Church in the village of [Village 1] in the province of Minya. He said that he had converted from the Coptic Orthodox faith to the Evangelical faith along with all his family when he had been [age] years old. He said that before March 2012 his wife and children had been living in [Village 1] in Minya. He said that the address which he had given in his application in Cairo had not been his permanent address: he said that he had been working in Cairo and then returning to Minya. He said that his family had never lived at the address in Cairo although they had visited Cairo, for example for medical treatment.
[The applicant] said that he talked to his wife and children in Egypt once a week but he did not know exactly where they were living. He said that the church had moved them to this location after what had happened in March 2012. He said that his house had been attacked in early March 2012 by the Salafists and the Muslim Brothers. He said that they had threatened to harm his family and to kill him. He said that his children had stopped attending school and had not sat their examinations as a result. He said that there had been a previous attack on the house in which he himself had been hit. He said that in March 2012 the Salafists had asked about him because they did not know if he was in Egypt or elsewhere. He said that his wife had told them that he was in Australia and that the Salafists had told her that once he returned he would be dead. He said that his wife and children had not been physically harmed in this attack.
[The applicant] said that he had not had any difficulty leaving Egypt when he had come to Australia. He said that in Australia he had worked on a [specified] church in Melbourne. He said that he had been one of a group of [number] people who had been brought to Australia. He said that his work here had been a sort of donation for the church. He said that all the rest of the group had returned to Egypt.
[The applicant] said that before he had left Egypt he had had problems with the government, the police, ‘the Brothers’ and the Islamic groups. He said that he had always been present at church, doing different activities within the church. He said that he had been responsible for looking after the families far from the church or whose health conditions did not allow them to go to the church. He said that because of his profession as [an occupation 1] and his experience in the [specific] industry he had had experience in [renovations] which he had used in the church.
[The applicant] said that in the second half of 2010 they had been building a small hall that had belonged to the church for meetings. He said that he could not remember the month because he [had medical condition 1] and his memory was weak. He said subsequently that this hall had been for the children, for Sunday school. He said that this had been for the Evangelical Church in [Village 1]. He said that more than thirty Brothers - Muslim Brothers - and Salafists, ‘bearded ones’, had attacked them while they had been doing this job. He said that the police had come and they had arrested him and [number] other men who had been involved in doing this building work because they had not had the licence or authorisation to build this hall. He said this rule did not apply to mosques. He said that even if they had applied they would not have been given permission.
[The applicant] said that he had been detained for [number] days in the police station in [Village 1]. He said that only he had been detained because he had been the oldest one there: the others had been very young, [age range]. He said that he had been detained because the police had felt the gravity of the situation. He said that many of the police belonged to the Muslim Brothers and the Salafists and shared the same attitude towards the Christians. He said that he did not know if he had been charged with any offence. He said that the officer had wanted him to sign under duress a sort of renunciation of the report which he had lodged against the Brothers and Salafists who had attacked them but he had not signed this. He said that the Muslim Brothers who had attacked them at church had hired a lawyer who had threatened him using guns. He said that the lawyer had threatened to kill him and to kill his family if he did not renounce this report. He said that the pastor had told him that he should give up the report.
[The applicant] said that prior to this he had had problems with the police on two occasions, once in 2007 and once in 2009. He said that in 2007, before the Feast of the Resurrection (which was usually in April or May in Egypt), they had been installing a cross and the police had taken them but they had not been detained overnight. He said that they had been told that if something like this happened again they would detain them again and they would accuse them of false pretences.
[The applicant] said that in 2009 he had been arrested because of a girl named [Ms A] who had been kidnapped by the Islamic groups. He said that this girl had been the [relative] of the wife of an acquaintance of his named [Mr A]. He said that this had been one of the families whom he had been serving as part of his service to the church. He said that the church had paid [amount] Egyptian pounds to a Muslim man who had returned the girl after [several] months. He said that this had maybe been in late October or early November 2009. He said that the church had helped the family to find another place to live.
Asked about his arrest in 2009 [the applicant] said that, through his movements with [Mr A], the Sheikh of the mosque and other Muslims had seen that they had been moving to find out where [Ms A] was. He referred to the fact that he had been arrested in connection with building the small hall for the church in 2010. He said that the police officer there had told him that he had been in their sights for a very long time and that they knew that he had contributed to bringing back the [relative] of [Mr A’s] wife. Prompted again regarding his arrest in 2009 he said that in late 2009, after [Ms A] had been returned, he had been arrested because they had thought that he had contributed to the fact that [Ms A] had converted back from Islam. He said that no one else had been arrested. He said that only he had been arrested because he had always been helping [Mr A’s] family. He said that he knew lots of people, to whom to pay money and who could help.
[The applicant] said that he had been arrested again by the police in November 2010. He said that this had been the biggest problem he had encountered. He said that he had known of one contractor named [name] who had been receiving some work from the government - [project types] - and he had been doing [occupation 1] work for this man. He said that this man had had [an age] year old son named [Mr B] and a daughter named [name]. He said that [Mr B] had always been coming to work as a supervisor because this had been his father’s business and that [Mr B] had always talked to him about religion and had asked him why he was a Christian. He said that [Mr B] had been educated and had been a ‘university guy’.
[The applicant] said that he had begun discussing religion with [Mr B] in June 2010 but he had started to work for his father from March 2010. He said that [Mr B] had started to get closer and closer to him because he had been the only Christian among the workers and the serious dialogues between them had started in June. He said that he had got to know [Mr B’s] sister roughly in October. He said that he was aware that some Christians involved in proselytising to Muslims in Egypt had been killed and that others had been detained by the government. He said that he had not been an official preacher but he had been involved in the service of the church, doing some [building] jobs and checking on families. He said that if somebody asked him about anything he would definitely help them. He said that [Mr B] and his sister had been baptised on [a specific date] in January 2011. He said that they had been from Cairo but he had taken them to his church in [Village 1] to be baptised. He said that he had introduced them to the pastor or the priest in December 2010.
[The applicant] said that this had caused big trouble and the Sheikh himself had said that he had been behind this and had reported this to the state security. He said that this had been ‘right after their disappearance’ which he said had been in December 2010 or in early 2011, maybe [number] days before the feast. He said that by their disappearance he meant that they had decided to leave their father’s house. He said that it had been his assumption that the Sheikh had reported this to the authorities because the Sheikh was behind all the incidents. He said that after [Mr B] and his sister had been baptised they had stayed for a while in a place which had belonged to the church.
[The applicant] confirmed that he claimed that he had been detained in November 2010. He said that this had been because of his work for the church. He said that each time he had been arrested they had been reminding him of the incidents and saying that they knew him and that they were monitoring him. He said that he had been receiving lots of threats from the police and from the Salafists. He said that he considered the police and the Salafists as one entity. He said that they had been fixated on the idea that he had been behind the disappearance of these two people and their conversion to Christianity because of his relationship at work with [Mr B] and his involvement in the church.

[The applicant] said that at this time he had been working in Cairo but returning to Minya. He denied that he had said in his application that he had left his residence in Minya totally: he said that maybe this had been a mistake made by his representative. He said that he would go to Cairo for 10 days or 15 days for work and then he would return to Minya and stay there for a month. He said that sometimes he would have jobs that lasted for 40 days in Cairo and then he would spend three or four months in Minya.
[The applicant] said that the Salafists had also attacked him in his home: they had hit him and they had broken the contents of the house. He said that they had called him an infidel and they had told him that they knew that he had assisted [Mr A] to bring back [Ms A]. He said that he had told them that he was going to report the attack to the police but for them this was no problem. He said that the Salafists had come to his home twice while he had still been in Egypt, in May 2011. He said that he had received some news that [Mr B] and his sister had been arrested.
[The applicant] said that after he had left Egypt the Salafists had only come to his home in March 2012 as he had mentioned previously. The officer put to him that in his application he had said that the police had gone looking for him once and the Salafists had come twice, terrorising his family who had now moved away from home. [The applicant] said that they had come twice and this had been why his family had left home. Asked what he feared would happen to him if he returned to Egypt [the applicant] referred to his evidence that some people had attacked the house and had threatened to kill him. He said that he thought that this was what was waiting for him if he returned. He said that the pastor himself had told him the same things. He said that in Sydney he was attending [Church 2] and [Church 3]. He said that he also met every Tuesday with a proselytising Iraqi family who had converted from Islam to Christianity.
The Notice of Intention to Consider Cancellation and [the applicant’s] response
As referred to above, [the applicant] was granted a Subclass 866 (Protection) visa [in] July 2012. In the Notice of Intention to Consider Cancellation issued [in] May 2016 the delegate informed [the applicant] that he considered that [the applicant] had not complied with paragraph 101(b) of the Migration Act in that he had provided incorrect information in his application form for a protection visa. Specifically the delegate considered that the fact that [the applicant] had returned to Egypt in 2014 and had remained there for six months suggested that he was not of adverse interest to the Egyptian authorities as he had claimed and that he did not fear being arrested by the police or harmed by the Salafists as he had claimed.
In a response to the ‘Notice of Intention to Consider Cancellation’ received by the Department of Immigration [in] August 2016 [the applicant] said that he had consulted the Department prior to leaving Australia in 2014 and he had been told that they had no concern. He said that he had had to travel urgently even though he had been aware of the risk involved with his trip because his children had been kidnapped and in danger. He said that he had paid money to secure their safety. He said that he had entered Egypt in a secret way, his brother had paid some people to secure his entry and departure from the airport, he had stayed in a secret place arranged by his brother and no one had been aware that he had been in Egypt until he had left the country.
[The applicant’s] representatives’ submission to the Tribunal dated 18 January 2017
Under cover of a submission dated 18 January 2017 [the applicant’s] representatives produced a statutory declaration made by [the applicant] on 17 January 2017 in which he confirmed that he claimed that he had moved from Minya to Cairo in 1994 because of troubles with Muslim fundamentalists and the authorities although he also said that he had moved for work. He said that his wife and children had continued to live in Minya and he said that his wife had died from a [medical condition] [in] August 2014.
[The applicant] said that in or around January 2014 he had received a telephone call from his brother [Brother A] who had told him that on or around [a date in] January 2014 he had received a telephone call demanding a ransom of [large amount] Egyptian pounds for the return of his ([the applicant’s]) children. [The applicant] said that the police and the authorities had not been told about the kidnapping because the caller had warned that if the authorities or the police were called the children would not be returned. He said that the kidnapping of children, especially Christian children, was a very serious problem in Egypt and he produced four media reports relating to the kidnapping for ransom of children. [The applicant] said that he did not know the identities of the people who had kidnapped his [children] but he suspected that they had been taken by the same Muslim fundamentalists who had been threatening him in Egypt.
[The applicant] said that when he had heard about his children he had booked a flight to Egypt. He said that he had felt that he had had no other choice but to go to Egypt to try to save his children and that he had been fearful that his children would be harmed by the kidnappers so he had needed to do whatever he could to get them back. He said that he had been prepared to risk his life for the safety of his children. He said that two weeks before he had left for Egypt he had attended the Department’s office in [City 1] where he said that he had been told by a customer service representative that he could travel to Egypt but that he must return before his Australian travel document expired. He confirmed that he had left Australia on [a date in] January 2014.
[The applicant] said that he had paid a bribe of [amount] Egyptian pounds to an airport officer through one of his brothers to ensure that he could pass through the airport undetected by the authorities. He said that his brother had also rented an apartment in [Town 1] (in Cairo) in his brother’s name and that while he had been in Egypt he had stayed in this apartment and his brother had brought him everything. He said that he had known that he would be at serious risk of harm if the authorities or the Salafists knew that he was in Egypt so he had needed to keep a very low profile. He said that his wife had stayed with him in the apartment and he had spoken with a priest, [Mr C], and with a prominent member of the Christian church, [Mr D], whom he had known when he had been in Egypt. He said that he had explained the situation facing his family and had asked for their prayers.
[The applicant] said that the only time he had left the apartment had been to go to the Australian Embassy in Cairo where he said he had asked about the possibility of getting his [children] to Australia. He said that he had not pursued this at the time because of the urgency of the situation facing his children but he had planned to begin the application process once he had returned to Australia. He said that when he had returned to Australia he had lodged an application for Australian citizenship because he had understood that the process of bringing his children here would be easier once he had become an Australian citizen. He noted that his application for citizenship had been stopped following the cancellation of his protection visa.
[The applicant] said that in order to raise money to pay the [large amount] Egyptian pound ransom to release his [children] he had sold his house and property to his [Relative A]. He said that the process of selling his house and property had taken about four months and his brothers [Brother B] and [Brother A] had met with his [Relative A] and the conveyancers on his behalf. He produced copies (together with translations) of contracts both dated [in] May 2014 relating to the sale of a house in Minya for [amount] Egyptian pounds and the sale of [specified] land in Minya for [amount] Egyptian pounds. [The applicant] said that he had borrowed an additional [amount] Egyptian pounds from his brother [Brother B] who had negotiated with the kidnappers for them to accept the lower amount of [total] Egyptian pounds in ransom.
[The applicant] said that he and his wife had been reunited with their children at the apartment in [Town 1] about four months after he had arrived in Egypt. He said that he had realised that it would not be safe for his wife and children to return to their home in [Village 1] in Minya so he had stayed with them in [Town 1] for two more months to try to make alternative arrangements. He said that [Mr C] and [Mr D] had arranged for his wife and children to move to another place far removed from where the children had been kidnapped with the help of another member of the church. He produced a copy of an undated statement from the priest, [Mr C] (together with a translation), confirming that [the applicant’s] [number] children had been kidnapped on [a date in] January 2014 and released about four months later after a ransom had been paid and that they were now in the custody of one of the members of the church in a place remote from their own residence for their own safety. The priest also said that the police had not been informed in accordance with the instructions of the kidnappers.
[The applicant] said that he had arrived back in Australia [in] July 2014 and [number] days later his wife had died from a [medical condition]. He said that he had not found out until his brother [Brother A] had told him five days later by which time the funeral had already taken place but he said that he would not have gone back to Egypt for the funeral in any case because he would not have tried to enter and leave Egypt again unless it had been absolutely necessary. He said that he was in contact with the children by telephone and through [social media] although he said that he was not sure exactly where they were. He said that he understood that because his children were Christian and because they were his [children] they could not live a normal life and that they were not going to school for their safety.
[The applicant] said that he had prepared the response to the ‘Notice of Intention to Consider Cancellation’ referred to above with the assistance of his doctor who spoke Arabic. He said that he had previously spoken to a friend about the ‘Notice of Intention to Consider Cancellation’ and that this friend had told him that he did not need the assistance of a migration agent and that it would cost too much money. He said that he had lost contact with the migration agent who had assisted him with his application for a protection visa in 2012.
[The applicant] denied that he had given incorrect answers in his application for a protection visa. He said that at the time he had completed his protection visa application he had feared that he would be arrested or harmed by the Egyptian authorities or Salafists if he returned to Egypt because of his record of Christian activities and that he still feared that he might be harmed by the Egyptian authorities or the Salafists. He said that Egypt was and remained volatile and that there was and continued to be a lot of violence against Christians, especially from Salafist groups like the Muslim Brotherhood.
[The applicant] said that the Department also thought that he had given incorrect information about his residential address in Egypt. (This was an observation made by the officer who conducted [one part of the assessment] and did not form part of the basis for the cancellation of his visa.) [The applicant] said that after he had moved to Cairo in 1994 he had gone back to Minya from time to time for work and after he had become committed to his wife he had begun staying in Minya for [a number of] days a week because his wife had refused to live in Cairo. He said that despite his troubles with Muslim fundamentalists and the authorities he had always been involved in the Christian church wherever he had been living. He said that soon after he had left for Australia his family had been terrorised by Salafists in their own home and they had left home temporarily but had then returned.
[The applicant] said that he believed that the contracts for the sale of his house and land proved that he had urgently needed money to pay a ransom. He said that there would have been no other reason for him to have sold his properties. He said that even though he had returned to Egypt for six months he still had a well-founded fear of persecution in Egypt. He said that the situation for Christians in Egypt was as bad as ever and that he had recently heard about a Christian church that had been bombed. He said that Muslim fundamentalists hated all Christians and they were infiltrating the government apparatus. He said that they had identified him as a specific target for their hatred and that he believed that the only reason he had survived during his trip to Egypt had been that he had been in hiding and that he had not engaged in any Christian related activities.
In their covering submission [the applicant’s] representatives referred to what he had said in his statutory declaration. They said that they were instructed that he had been an active member of the Evangelical Church in Egypt and that he considered proselytising an obligation of his faith. They said that he had been involved in ‘returning Muslims to Christianity and converting Muslims to Christianity’. They submitted that in the context of the cancellation of visas under section 109 of the Migration Act the Department bore an onus of proving ‘to a high degree of satisfaction’ or on ‘reasonably compelling grounds’ that the visa should be cancelled. They submitted that the fact that [the applicant] had returned to the country of feared persecution was not conclusive proof that he had provided incorrect answers in his application form or that he did not face a real risk of persecution based on a Convention ground.
[The applicant’s] representatives produced a research response prepared for the Immigration and Refugee Board of Canada in 2013 which they noted quoted the ‘Business Anti-Corruption Portal’ as stating that ‘transparency of Egypt’s border administration [is] quite low and [identifies] the pervasiveness of corruption and bribery in relation to import and export as a problem’ and that ‘low-level officials in customs zones are known to demand bribes to expedite paperwork for licences, clearances, and other permits required to do business’. They also produced a media report published in 2015 mentioning security shortcomings at Egyptian airports and reporting that passengers were able to jump the queue when boarding flights (but not to avoid security procedures altogether) by paying 20 British pounds or 30 American dollars. They submitted that it was not unrealistic or implausible that [the applicant] had been able to bribe the airport authorities to be allowed into the country. They also referred to the four media reports relating to the kidnapping for ransom of children which [the applicant] had produced and they submitted that it was reasonably plausible that [the applicant] had travelled to Egypt because his children had been kidnapped and that he had paid a ransom to secure their release.
With regard to the matters to be considered in the exercise of the discretion whether to cancel [the applicant’s] visa, his representatives submitted that as an Evangelical Christian there was a real risk that he would be persecuted for a Convention ground if he were forced to return to Egypt. They referred to the fact that the delegate who had made the decision granting [the applicant] a protection visa had said that proselytising in Egypt could lead to arrest, detention and mistreatment for ‘contempt of religion’ under Article 98 of the Penal Code and they produced a media release from Human Rights Watch dated 15 September 2016 saying that a new law relating to Christian places of worship in Egypt discriminated against the Christian minority, that recent incidents of anti-Christian violence had been prompted by anger among some local Muslims about actual or alleged church construction and that there was a climate of impunity for violent crimes that targeted Christians. They submitted that the only reason that [the applicant] had not been affected by religiously-motivated violence when he had returned to Egypt had been that he had lived in hiding and had not practised his religion openly.
Discussion of the issues
At the hearing before me on 19 January 2017 [the applicant] said that his parents still lived in [Village 1] and that sometimes his younger brother [Brother A] visited them there. He said that he did not know where his children were residing exactly but the church had found a place for them to live which was far from that area. He confirmed that he belonged to the Evangelical Church in Egypt. He said that from his arrival in Australia in 2011 until he had returned to Egypt in 2014 he had been involved in [Church 2] and [Church 3]. He said that he had visited [Church 3] when one of the missionaries - the Christian converters - like [Missionary A], had been speaking, but the regular church which he had attended had been [Church 2]. He said that after all the incidents which had happened to him and his wife’s passing he had experienced a state of despair or extreme grief and he had been living in isolation. He said that after he had returned to Australia in 2014 he had gone to [Church 2] a few times but he had not attended regularly as he had before.
[The applicant] said that he had sometimes been involved in proselytising in Australia with [Church 3]. He said that he had sat with new Christians and had talked to them and encouraged them to be steadfast in their religion. I asked him if he had gone out into the community to seek converts himself. He said that he had done this sometimes, if circumstances had allowed. He said that usually if he saw an Arab he tried to have a conversation with them and they started talking about religion, about faith. He said that even now, when he was in [a named location], he did this. He said that he had talked to people whom he had met through his work or to people in shops or anywhere.
I referred to the fact that in his application for a protection visa [the applicant] had said that as a result of his work in the church while he had been living in Minya he had encountered some problems and this had been one of the reasons he had relocated to Cairo in 1994. I noted, however, that as I understood it his wife and children had always lived in [Village 1] in Minya. [The applicant] confirmed that his wife had not wanted to live in Cairo. I noted that he had said that, after he had got married, although he had been working in Cairo he had always been returning to [Village 1]. [The applicant] said that he had spent some of the time in his village but he had spent most of his time in Cairo because of his work and also because to some extent it had been safer there.
I put to [the applicant] that when he had been interviewed by the primary decision-maker he had said that he had not actually left his residence in Minya at all. He had said that this must have been a mistake made by his representative. He had said that he would go to Cairo for 10 days or 15 days for work and then he would return to Minya and stay there for a month. He had said that sometimes he would have jobs that lasted for [number] days in Cairo and then he would spend three or four months in Minya. [The applicant] denied saying this. I put to him that I had listened to the recording of the interview and he had certainly said this. [The applicant] said that it was impossible for him to have said this. He said that before his marriage he had spent most of his time in Cairo and his visits to Minya had been infrequent unless there had been a situation at the church which had required him to be there.

I noted that this might have been true before [the applicant] had got married but I questioned whether it had been true after he had got married (in 2001). [The applicant] said that after his marriage he had stayed for some time in Cairo for his work and then he had gone back to Minya to stay there for three days every week or maybe every ten days. I put to [the applicant] that when he had been interviewed by the primary decision-maker he had said that the problems which he had had with the police and with the Muslim fundamentalists had all been in Minya. [The applicant] said that this was correct. I put to him that this suggested that his home had still been in Minya. [The applicant] said that it was true that his home had been in Minya but he had rented a place in Cairo. He said that he had been born in Minya, in the same village and in the same house where he had been living.
I put to [the applicant] that his evidence suggested that he had been involved in the church in Minya, not in Cairo. [The applicant] said that he had sometimes been involved in the churches in Cairo. I asked him if he had ever been arrested or detained by the police in Egypt. He said that he had been. He said that he could not recall how many times this had happened but it had happened several times, repeatedly, specifically when he had been working with the church. I noted that in his application and when he had been interviewed by the primary decision-maker he had referred to four occasions. [The applicant] repeated that it had happened several times, repeatedly, but that he could not recall the exact number. He said that for some time he had been experiencing weak memory and also [medical condition 1] and stress which were affecting his mental condition and also his vision and memory.
I asked [the applicant] if he had ever been charged with any offence in Egypt. He said that there had been no specific charge against him but they could do anything: they could convict someone if they wanted to, specifically if they were Christian activists. I noted that he had said that he had been arrested and that on some occasions he had been detained for a few days. I asked him if he had ever had to appear in a court. He said that he had not. He confirmed that he had left Egypt legally in 2011, travelling on a passport in his own name.
I referred to the fact that in [the applicant’s] application for a protection visa which he had made in December 2011 he had said that he feared that if he returned to Egypt he would be arrested by the police. [The applicant] confirmed that he had said this but he said that this had not been the only reason. I noted that he had also said that he had feared being harmed by Salafists. [The applicant] said that this was correct. He said that because of the revolution that had been going on at the time there had been a large increase in problems for Christians and the police had been able to do anything to them. He said that the police could still do anything to Christians.
[The applicant] said that since the Muslim Brotherhood had been able to control the government for one year in Egypt they had been able to infiltrate all the government departments and specifically the police force. He said that they still had people there in various departments. I put to [the applicant] that I was sure he was aware of what had happened to the Muslim Brotherhood under the current regime in Egypt and that this made it a little difficult to accept that they had infiltrated the police.[3] [The applicant] insisted that there were still members of the Muslim Brotherhood in all of the government departments. He said that the evidence of this was an incident which had occurred in Rafah a week before the hearing: he said that the people who had enabled the terrorists had been two policemen. He said that the two who had helped the killing of members of the police force and the army had been members of the Muslim Brotherhood.
[3] On 25 December 2013 the Muslim Brotherhood was declared a terrorist organisation and since then Muslim Brotherhood members, supporters and sympathisers have been arrested and prosecuted and many have been sentenced to death in mass trials: see DFAT Country Information Report - Egypt, 24 November 2015, paragraphs 3.39-3.45.
[The applicant] confirmed that he claimed that he had returned to Egypt in January 2014 because his children had been kidnapped. He confirmed that he had had to stay in an apartment in Cairo and that he had only left the apartment once, to go to the Australian Embassy in Cairo. I asked him what he had hoped to achieve by returning to Egypt. [The applicant] asked what he had been supposed to do, to stay here and risk losing his children or to go there and try to help them, to get them back. I put to him that according to his evidence he had stayed in an apartment in Cairo: he had not been able to go out of the apartment at all. His brothers had had to do everything that had been necessary to release his children. [The applicant] said that this was correct but he said that if he had been required to go out and meet the kidnappers in order to have his children released then he would have done this. He referred to the fact that he had spoken by telephone with his [Relative A] regarding the sale of his house and land.
I put to [the applicant] that it did not appear that his presence in Egypt had been necessary or indeed that it had helped at all in securing the release of his children. [The applicant] said that this was my opinion but when he had heard what had happened his only thought had been to go there to save his children. I put to him that if I accepted his evidence he had feared that he would be arrested by the police if he returned to Egypt so if this had happened it would not have helped his children at all. [The applicant] said that he had not thought of any consequence or problems or outcomes at the time: the only thing he had been thinking about had been his children and his fear that something would happen to them.
[The applicant] confirmed that he claimed that before he had left for Egypt he had visited the office of the Department of Immigration in [City 1]. He said that this had not been two weeks before he had left (as he had said in his statutory declaration made on 17 January 2017) because the period between when he had found out that his children had been kidnapped and when he had left Australia to go to Egypt had been less than two weeks. He said that right after he had received the telephone call about his children he had bought the ticket and he had taken his travel document and evidence of his permanent residence to the office of the Department of Immigration in [City 1].
I referred to [the applicant’s] evidence that he had sold his house and land in Egypt. He confirmed that he had not been able to meet his [Relative A] who had bought the property because he had had to stay in the apartment in Cairo so his brothers [Brother A] and [Brother B] had met with his [Relative A] on his behalf. I noted that his representatives had produced copies of the contracts for the sale of the house and the land and I put to him that according to the translations which had been provided these contracts had his signature on them.[4] [The applicant] denied that this was his signature: he said that one of his brothers had signed for him. I put to him that according to the contracts his brothers had witnessed his signature. [The applicant] repeated that one of his brothers had signed for him based on an agreement with his [Relative A] who had bought the house and land. He said that if the buyer had been a stranger he would have had to sign in front of him or his brother could have signed on his behalf but he would have had to have had a power of attorney from him. I put to him again that according to the translations which had been produced he had signed both documents. [The applicant] repeated that he had not. He said that he had not gone out or met his [Relative A] in order to sign the contracts.
[4] See folios 85 and 86 of the Tribunal’s file 1619674.
[The applicant] confirmed that when he had returned to Egypt in 2014 he had paid a bribe to pass through the airport undetected. He said that this had been a total of [amount] Egyptian pounds for both his entry and his departure. He said that it had been his brother who had paid the bribe and had found the officer who had assisted him through his entry and departure. After I noted that there had been no mention in his statutory declaration of separate payments for his entry and departure [the applicant] said that his brother had clarified this in a statement which he had received the day before the hearing and which it had been indicated at the beginning of the hearing was still to be translated. He said that he had explained to his representative that the total cost of his return to Egypt including entry and departure had been [amount] Egyptian pounds. He said that his brother had paid the officer only half the money when he had entered because he had only booked a one way ticket from here to Egypt. He said that this had been because he had not known what the outcome would be with regard to his children. He said that his brother had not spoken to the airport officer directly: he had communicated with him through a facilitator. He confirmed that his brother had done this for a second time when he had been about to leave Egypt.
I explained to [the applicant] that the first question I had to look at was whether he had given incorrect answers in the application form in the way described in the notice which had been sent to him. I referred to the fact that, as we had discussed, he had said in his application for a protection visa in December 2011 that he feared that if he returned to Egypt he would be arrested by the police or harmed by Salafists. I put to him that I considered that his decision to return to Egypt in 2014 and to remain there for six months was relevant to whether he had in fact held this fear. [The applicant] said that he had had no alternative but to return to Egypt because of the kidnapping of his [number] children. He said that it had not been his decision to stay in Egypt for six months: this had been the time it had taken to secure the release of his children and for the church to find a safe place for them to live. He said that as soon as he had made sure that they were safe he had had his brother book the ticket for him to return to Australia. He added that at the time he had gone to Egypt he had realised that his going there would pose a risk to him and also a risk in accordance with the Australian law but he had had no other choice. He said that if there had been any other reason which had caused him to return to Egypt - if, for instance, he had wanted to go back to see his children - he could have met them in any country other than Egypt.
I explained to [the applicant] that if I found that he had given incorrect answers in the application form in the way described in the notice which had been sent to him this did not mean that his visa had to be cancelled: I had a discretion to exercise as to whether his visa should be cancelled. I explained that in exercising this discretion I was required to have regard to certain matters and that one of those matters was his present circumstances (which I noted I interpreted as referring to his circumstances before he had [moved to a named location]). [The applicant] said that he had been living a normal life. He said that he had been seeing a [health] specialist and he had been receiving [welfare]. He said that he had not had the ability to work because of his [health] but he had tried. He said that his physical and mental state had prevented him from continuing with the work.
[The applicant] said that like any other person he had sometimes felt severe distress. He said that he had sometimes turned to [a specified practice] and sometimes he had stayed at home and had not gone out for a week because he used to remember all the incidents which he had gone through and he still did. He said that the thing which had specifically affected him had been that he had not been able to be there for his wife’s burial. He said that for his children the situation had been different because there had been the possibility of him helping them and bringing them back. He said that this had been the reason he had not thought of anything else and he had risked his life for their sake. He said that in his wife’s case she had already passed away so there would have been no benefit from his risking his life in order to be there. He said that if he could have brought her back he would have gone there regardless of the risk.
I asked [the applicant] if he had been prevented from working because of his [poor] health since he had first come here in 2011 or only after he had returned to Australia in 2014. He said that it had been throughout this period. He said that before he had returned to Egypt he had still been quite new to Australia and he had not known anyone. He said that he had asked for help from some young Egyptian men who had worked in the same profession as him but they had refused to help him. He said that on average he had worked for one day a week.
I explained to [the applicant] that another matter which I had to consider was his contribution to the community in Australia. I noted that he had already referred to his involvement in [Church 2]. [The applicant] referred to his evidence that he would support the Christian converts. He repeated that he would talk to anyone he met about spirituality and faith and such matters. He said that if anyone asked him for help he would not let them down. He said that, God willing, if his circumstances improved, he would try to bring his children here and he would have to find work in order to support them and help them. He said that it was his dream to bring his children here and to offer them a normal life instead of the life they were living in Egypt, being deprived of school and a lot of things which children of their age had.
I explained to [the applicant] that government policy also required that I consider certain further matters in relation to the cancellation of his visa. I noted that one of these matters was whether there were any children in Australia whose interests could be affected by the cancellation. [The applicant] confirmed that there were no children in Australia whose interests could be affected by the cancellation. He said that he lived alone here and that he had no one here.
I explained to [the applicant] that government policy also required that I consider whether the cancellation would lead to his removal from Australia in breach of Australia’s international obligations not to return someone to a country where they would face persecution, death, torture or cruel, inhuman or degrading treatment or punishment. I noted that his representatives had referred in this context to violence against Christians in Egypt. [The applicant] said that this was continuing up until now. I explained to him that the Australian Department of Foreign Affairs and Trade produced reports which the Tribunal was required to take into account and that it had produced reports in relation to Egypt and the Copts in Egypt in November 2015. It had said that under the current administration in Egypt there had been a significant decrease in the scale and number of attacks against Copts.[5] [The applicant] referred to the church that had been blown up a few weeks previously, ‘the three that were slaughtered or beheaded one week ago’ and ‘the man who was killed in Alexandria because he was selling alcohol or spirits’.
[5] DFAT Thematic Report - Egyptian Copts, 24 November 2015, paragraph 2.18.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had also provided some advice in 2010 in relation to the situation of the evangelical churches in particular. It had said that due to their much smaller numbers, and therefore their less conspicuous public presence, non-Orthodox Christians appeared to experience relatively less violence than their Orthodox counterparts.[6] [The applicant] said that this was not true. He said because the Evangelical Church was much more active than the Coptic Church it was actually much more targeted than the other one. He said that it did not have to be the churches themselves: it was the people, whether single people or teams that worked together. He said that he did not think that the Australian Department of Foreign Affairs and Trade would be able to access all the incidents that happened all around the country, in particular incidents which happened in remote or isolated villages. He said that since the leader of the current administration had taken office he had been calling on the extremists and institutions like Al Azhar to treat Christians better but to no avail. He said that even if the President was good he did not have the ability to control the extremists.
[6] DFAT, ‘CIS Request No. EGY10290 - Evangelical Churches in Egypt’, 21 June 2010, CX245250.
[The applicant] said that extremism was being taught by those who were well-educated and in the Muslim institutions like Al Azhar it was being taught to young people who were in secondary schools. He confirmed that he claimed that extremism was being taught at Al Azhar. He said that I could look at the books on the Al Azhar website or I could ask any of a number of journalists whom he named: Islam al-Behairy (who he said had introduced the case of what was being taught at Al Azhar, what the education programme was, what books there were, the explanation of the Prophet’s sayings and how they had been misinterpreted and who had been imprisoned for one year), the writer Fatima Naoot (who he said had also been convicted for insulting Islam although he said that he thought that the President had intervened to prevent her from going to prison), Amr Adeeb, Ibrahim Eissa and Yusuf al-Husseini. He said that there was also a cleric at Al Azhar who had not liked what had been being taught there and who had been called an infidel.
I asked [the applicant] if there were any other matters which he wished me to take into account in relation to the cancellation of his visa. [The applicant] said that if he went back to Egypt his life would be in significant danger. He said that he had sold his house and his land to bring back his children. He said that his children were currently a burden to the church: the church was supporting them. He said that even if his brother were able to contact the airport officer again to provide him with safe entry to Egypt he would not be able to live a normal life there and he would not be able to find a job to support himself and his children. He said that during the six month period which he had spent in Egypt in 2014 he had been living in a prison. He said that if he went back it would be very hard for him and even if his brothers were able to support him and his children for a year they would not support him for the rest of his life. He said that, most importantly, extremism would never vanish in Egypt. He said that the treatment of Christians by the government had not changed and would not change because it had been the same since Gamal Abdel Nasser. He said that if you searched the internet for all the incidents which had been happening - all the cases which had been happening against Christians - you would not find one where the Christians had actually received justice because in Egypt Christians were considered second-class citizens.
Post-hearing submission
In a further submission dated 2 February 2017 [the applicant’s] representatives referred to the fact that the primary decision-maker had said in the decision under review that there was no evidence that [the applicant] had consulted the Department of Immigration before returning to Egypt in 2014. They referred to a decision of the Refugee Review Tribunal, N00/34370 [2001] RRTA 137 (14 February 2001), in which the Tribunal set aside a decision to cancel a protection visa in circumstances where it found that the visa-holder had advised the delegate of the Minister of his intention to return to the country of feared persecution (in that case Sri Lanka) before the visa had been granted. The Tribunal relied on Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779 to find that the power to cancel a visa for non-compliance with a provision relating to an application form was confined to non-compliance that was not known to the decision-maker when the visa was granted but on appeal in that case the Full Court of the Federal Court held that the Minister’s power to cancel a visa was not limited in this way. The Full Court said that the fact that the visa had been granted with full knowledge of the non-compliance might be a matter that could be taken into account by the Minister in the exercise of the discretion whether to cancel a visa but that there was no basis for concluding that, in such circumstances, the power to cancel the visa did not arise.[7] In any event there is no suggestion in the present case that the relevant non-compliance was known to the delegate of the Minister who granted [the applicant] his protection visa so the decision of the Refugee Review Tribunal is clearly distinguishable from the present case on its facts.
[7] See Minister for Immigration & Multicultural Affairs v Jalal (2000) 102 FCR 63 at [18] per Ryan, Marshall and Emmett JJ.

[the applicant’s] representatives referred to his evidence that he had only travelled back to Egypt because his [number] children had been kidnapped and they produced a copy of the statement from his brother [Brother B] to which reference was made at the hearing, together with a translation, in corroboration of his evidence. They drew attention to his brother’s evidence that he had paid [amount] Egyptian pounds to a police officer working at the airport through an assistant officer whom he named in order to secure [the applicant’s] passage through the airport, that he had rented an apartment for [the applicant] in Cairo, that he had told [the applicant] and his wife not to leave the apartment for any reason, that he had negotiated the ransom with the kidnappers, that he had also arranged for the sale of [the applicant’s] house and land to their [Relative A], that after the children had been released the church had found a place for them to stay with their mother since their house had been sold and that he had again paid [amount] Egyptian pounds to the same assistant to secure [the applicant’s] departure through the same police officer working at the airport. They submitted that this statement should be afforded great weight and that it was unlikely that [the applicant’s] brother would have done what he claimed he had done if he had not genuinely believed that [the applicant] faced a real risk of significant harm.
[The applicant’s] representatives also addressed the matters required to be taken into account in the exercise of the discretion whether to cancel the visa. They submitted that since the death of his wife in August 2014 [the applicant] had struggled with depression and that this had had a significant impact on his attention and concentration. They said that in addition he suffered from [two medical conditions] which affected his day-to-day wellbeing. They produced a report dated [in] January 2017 from a psychologist who said that he had seen [the applicant] on four occasions, three times in September 2015 and once in November 2015. The psychologist said that [the applicant] had been living in the house of a stranger whom he had met though the Egyptian Coptic community, that he had been socially isolated and that he had communicated with his children in Egypt on a weekly basis but that he had had no other social support networks.
The psychologist said that [the applicant’s] wife had died suddenly [a number of] days after his arrival back in Australia following a visit to Egypt where he had spent some time with his wife and children. He said that ever since his wife’s death [the applicant] reported having [particular symptoms] although he denied any [of another symptom]. The psychologist said that [the applicant] stated that he was a devout Coptic Orthodox Christian but that due to his wife’s death and difficult circumstances he was angry with God, he had given up on his faith and he was therefore unwilling at present to connect with his church community in Australia. The psychologist said that [the applicant] appeared to be suffering from [a severe condition] and he recommended that he continue to receive regular [treatment]. [The applicant’s] representatives also produced a letter from a general practitioner dated [in] August 2016 addressed to [a hospital] saying that [the applicant] had been referred there in February, that he had been advised to see a psychologist first which he had done and that he had now been given an appointment in 2017 which was ‘too far for him’. The letter refers to the fact that [the applicant] has been diagnosed with [two further medical conditions]. [The applicant’s] representatives submitted that his [health] was likely to deteriorate significantly if he returned to Egypt because he would be required to live in hiding and he would not have the chance to access psychological services.
[The applicant’s] representatives submitted that his health issues had also had an impact on his contribution to the community and they referred to the fact that the psychologist had said that he was unwilling to connect with his church community in Australia. They produced a letter dated [in] January 2017 from [Mr E] who said that he had known [the applicant] for two years, that [the applicant] had lived with him for eight months, that he was ‘a great guy’, that he was a religious man and that they used to attend church together on a weekly basis. They also produced a letter dated [in] January 2017 from three other people who said that [the applicant] was a friend and a ‘great person’ whom they had known for a year. They also produced a letter dated [in] January 2017 from [Ms B], the co-director of an organisation called [Organisation 1], who said that [the applicant] was a popular [client], that he was a great role model because he had lived in the community for a considerable amount of time, that he was a very warm, kind and reliable person, that she had no doubt he had a great work ethic and that she had no reservation in recommending him for [assistance] as he was quite westernised and was a man of very good character who she thought would make a great contribution to Australia.
[The applicant’s] representatives said that he acknowledged that he had struggled to contribute to the community since the death of his wife, that he would like to obtain [professional] support to work through his [health] issues and to re-connect with the church community in Sydney and that he would also like to obtain better support to manage his [two medical conditions] so that he was able to return to work. They submitted that although he had been less engaged with the Evangelical Church in Sydney since his wife’s death he would face a real risk of significant harm as a result of his religious beliefs if he returned to Egypt. They submitted that if [the applicant] were to return to Egypt and were to practise his faith in public he would be at serious risk of persecution.
[The applicant’s] representatives produced five further media reports referring to the well-reported incident in which a Muslim mob stripped a 70 year old Christian woman and paraded her naked in an attack in which seven Christian homes were also ransacked in the village on Karama in Minya province in May 2016 as a result of rumours of an extramarital affair between the woman’s son and a Muslim woman, the killing of a priest outside a car repair shop near St George’s Church in the town of el-Arish in North Sinai on 30 June 2016, a tragic accident in which an Orthodox Christian nun from the Mar Girgis monastery in Old Cairo was killed by a stray bullet in an exchange of gunfire on 5 July 2016, the terrorist attack on St Peter and St Paul’s Church in Cairo on 11 December 2016 in which 28 people were killed (said to be the deadliest such attack since a church bombing in Alexandria on 1 January 2011 which killed 23 people) and the killing of a Christian who owned a shop which sold alcohol by a Salafist in Alexandria on 3 January 2017. They also produced a research response prepared for the Immigration and Refugee Board of Canada in May 2015 with regard to the situation of Coptic Christians in Egypt.
Conclusion
As referred to above, in their submission dated 18 January 2017 [the applicant’s] representatives submitted that in the context of the cancellation of visas under section 109 the Department bore an onus of proving ‘to a high degree of satisfaction’ or on ‘reasonably compelling grounds’ that the visa should be cancelled. They referred in this context to a decision of the Refugee Review Tribunal, N02/45490 [2003] RRTA 345 (15 April 2003), which in turn referred to Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570 in which Wilcox J said at 572-573 that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. As the Refugee Review Tribunal noted, what Wilcox J said was applied in Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383 and Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
However it is well-established that concepts drawn from civil litigation are generally inappropriate in administrative decision-making and that there is an onus neither on the visa holder nor on the Minister in cases like the present: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ. The better view appears to be that, as French, Hill and Carr JJ said in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25]:
‘The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.’[8]
[8] While Zhao related to cancellation under section 116 rather than section 109, as in the present case, I consider that the principles are equally applicable to cancellation under section 109.
In the present case the issue is whether [the applicant] did not comply with paragraph 101(b) of the Migration Act in the way described in the notice sent to him in accordance with section 107. As mentioned above, the notice referred to the answers [the applicant] had given in his application for a protection visa regarding his reasons for claiming protection. Relevantly, [the applicant] said in his application that he feared that if he returned to Egypt he would be arrested by the police or harmed by Salafists. [The applicant] concedes that he left Australia [in] January 2014, returning to Egypt, and that he remained there for six months, arriving back in Australia [in] July 2014. I consider that his decision to return to Egypt in 2014 is clearly relevant to whether, at the time he made his application for a protection visa in December 2011, he held the fear of returning to Egypt which he claimed to hold, and therefore to whether he gave incorrect answers in the application form in the way described in the notice sent to him in accordance with section 107.
Reasonable minds may differ as to whether a decision by an applicant (or, as in this case, a visa holder) to return to the country where they claim to fear being persecuted is inconsistent with that claimed fear.[9] Much will depend upon the individual circumstances of the case and the precise claims which were made. In the present case, although [the applicant] said that he feared that he would be arrested by the police if he returned to Egypt, this was in the context of his resuming his religious activities (building churches, returning Christians who had forcibly been converted to Islam to Christianity and converting Muslims to Christianity) which he claimed had already brought him to the attention of the authorities, resulting in his arrest on a number of occasions. He did not claim that there were outstanding charges against him in Egypt and he said that he had not had any difficulty leaving Egypt when he had come to Australia in 2011. Likewise, so far as his fear of the Salafists was concerned, this was based on his resumption of his Christian activities rather than his mere presence in Egypt.
[9] Compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[The applicant] has said that he returned to Egypt only because his [number] children had been kidnapped, that he spent almost his entire time in Egypt in hiding in an apartment in Cairo, going out only to visit the Australian Embassy in Cairo to ask about the possibility of getting his [children] to Australia, and that his brother [Brother B] paid bribes totalling [amount] Egyptian pounds to a police officer working at the airport to ensure his safe entry and departure through the airport. [The applicant’s] evidence in this regard is corroborated by the statements which have been produced from his brother [Brother B] and from the priest, [Mr C]. He and his representatives have also referred to independent evidence that the kidnapping for ransom of children is a serious problem in Egypt and that corruption and bribery of officials is likewise a problem, including at airports. I have also taken into account in this context the letters which were produced after the hearing as referred to in paragraph 71 above which [the applicant’s] representatives submitted as character references.
As I indicated to [the applicant] in the course of the hearing before me, I have significant reservations about his evidence with regard to his return to Egypt. In the first place, as I put to him, it is not clear to me what his return to Egypt in fact achieved, given that he has said that he had to remain in hiding in an apartment in Cairo for almost the entire time he spent in Egypt. As I put to him, by his account it was his brothers who did everything necessary to secure the release of his children. [The applicant] said that this was correct but he said that if he had been required to go out and meet the kidnappers in order to have his children released then he would have done this. I consider that if that had been required he could have returned to Egypt for that purpose but he would not have needed to spend six months in hiding in an apartment, living in a prison as he himself put it.
Secondly, as I likewise put to [the applicant], the copies of the contracts for the sale of his house and land in Egypt which were produced to the Tribunal do not appear to support his account that his brothers signed the contracts on his behalf because he was unable to leave the apartment. As I put to him, according to the translations which have been provided both these contracts have his signature on them.[10] [The applicant] denied that this was his signature: he said that he had not gone out or met his [Relative A] in order to sign the contracts and that one of his brothers had signed for him. However, as I put to him, according to the translations both his brothers witnessed his signature.
[10] See folios 85 and 86 of the Tribunal’s file 1619674.
[The applicant] said that if there had been any other reason which had caused him to return to Egypt - if, for instance, he had wanted to go back to see his children - he could have met them in any country other than Egypt. However he said at the hearing before me that he had only been working one day a week on average in Australia and I consider that it would have been cheaper for him to go back to see his family in Egypt rather than to arrange for his wife and [number] children to meet him in a third country. [The applicant] also said that there would have been no reason for him to have sold his house and land if he had not urgently needed money to pay a ransom. However it is clear from his evidence that he was planning to bring his [number] children to Australia and I consider that the sale of his house and land in Egypt is consistent with that plan.
The report from a psychologist which was produced after the hearing before me states that [the applicant] told the psychologist (whom he saw in 2015) that he had visited Egypt in 2014 to spend some time with his wife and children, not that he had been forced to return to Egypt because his children had been kidnapped. The psychologist records that [the applicant] stated that ‘he would experience [another severe symptom] should his children not be allowed [to] come to Australia and receive permanent residency next year following his own scheduled timeframe for receiving his Australian Citizenship’. To the extent that [the applicant] was hoping to put pressure on the Australian authorities to expedite the processing of any application which he might make for visas for his children, it would presumably have been a more powerful argument for him to have said that (as he now claims) they had been kidnapped for ransom in 2014 and that they were being taken care of by the church in an undisclosed location and were unable to continue to attend school.
I consider it rather more likely that [the applicant] returned to Egypt to spend some time with his wife and children (as he apparently told the psychologist) than that he was forced to return to Egypt because his children had been kidnapped, as he has said subsequently. I note that I have not considered it necessary to decide whether [the applicant] in fact approached the office of the Department of Immigration in [City 1] before returning to Egypt as he has claimed. While this may be relevant to whether he knew that by returning to Egypt he might jeopardise his protection visa, I do not consider that it is relevant to whether he gave incorrect answers in the application form in the way described in the notice sent to him in accordance with section 107.
I note that a condition (Condition 8559) has been imposed on protection visas granted on or after 3 June 2013 requiring that the holder must not enter the country by reference to which the holder was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing. Since [the applicant’s] protection visa was granted [in] July 2012 he did not breach any condition of his visa by returning to Egypt. As I have indicated above, absent such a condition, I consider that the implications of his decision to return to Egypt depend upon the individual circumstances of the case and the precise claims which were made in his application for a protection visa. As referred to above, [the applicant] did not claim that he had fled Egypt or that he faced being arrested at the airport if he returned there because of outstanding charges or warrants against him.
While I do not accept that, as he and his representatives have said, he remained in hiding when he returned to Egypt, I accept that during the six months for which he remained in Egypt he did not engage in the sort of religious activities which he has claimed brought him to the attention of the authorities and the Salafists. Having given careful consideration to all of the material before me, I do not accept that the fact that, as I have found, [the applicant] returned to Egypt for six months in 2014 to spend some time with his wife and children means that he did not genuinely fear that if he returned to Egypt to live (and by implication resumed his claimed religious activities) he would be arrested by the police or harmed by Salafists as he claimed had happened in the past. I do not accept on the evidence before me that [the applicant] gave incorrect answers in the application form in the way described in the notice sent to him in accordance with section 107. Accordingly I do not accept that there was non-compliance by [the applicant] in the way described in the section 107 notice and it follows that the discretionary power to cancel his visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
Subsection 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104 or 105 or with subsection 107(2) of the Migration Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in their circumstances.

The exercise of the cancellation power under section 109 of the Migration Act is conditional on the Minister issuing a valid notice to the visa holder under section 107, giving particulars of the alleged non-compliance. If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.