1620675 (Refugee)

[2017] AATA 2091

1620675 (Refugee) [2017] AATA 2091 (10 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620675

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Christopher Smolicz

DATE:10 August 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 10 August 2017 at 2:42pm

CATCHWORDS

Refugee – Protection visa – Egypt – Federal Circuit Court remittal – Social group – Coptic Orthodox Christians – Deacon – Pastoral Worker – Blasphemy – Khidma/ Khidmet Ikwet il-rab ( religious community service) – Religious discrimination – Detained – No right to enter and reside in any other country – Member of the same family unit – Well-founded fear of persecution

LEGISLATION

Migration Act 1958, ss 5(1), 36, 36(2)(a)-(c), 36(3), 36(2A), 36(2B), 65, 91R, 91S 499

Migration Regulations 1994, Schedule 2

CASES

AXA15 & Ors v Minister for Immigration & Anor [2016] FCCA 2794

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Egypt, applied for the visas [in] August 2013 and the delegate refused to grant the visas [in] May 2014.

3. On 26 May 2014 the applicants applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision. They appeared before the RRT, differently constituted, on 23 April 2015 to give oral evidence (the first hearing).

4. On 4 May 2015 the RRT affirmed the Department’s decision not to grant the applicants Protection visas.[1]

   [1] RRT decision file ref.1409273

5. The applicant sought judicial review of the RRT decision to the Federal Circuit Court of Australia (FCCA).  On 2 November 2016 the FCCA quashed the RRT’s decision and remitted the matter to the Administrative Appeals Tribunal (the Tribunal) for determination according to law.[2] The matter is now before the Tribunal pursuant to the order of the FCCA.

   [2] AXA15 & Ors v Minister for Immigration & Anor [2016] FCCA 2794

6. The applicants appeared before the Tribunal on 4 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [Father A] ([Father A]) from [Country 1].

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

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

   Refugee criterion

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

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

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

19. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

22. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the report prepared by the Department of Foreign Affairs and Trade (DFAT) Country Information Egypt dated 19 May 2017. The Tribunal has had regard to the thematic briefing paper titled “Egypt Coptic Christians” prepared by the Department’s Country of Origin Information Service Section (COISS) dated 30 May 2017

    Member of the same family unit

24. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether the applicants meet the refugee or complementary protection criteria because of their Coptic Orthodox Christian religious beliefs.  

26. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

27. [The applicant] and [the second named applicant] were born in Egypt. They married in February 2012. The applicant’s brother and uncle live in Australia. In February 2013 the applicants applied for tourist visas to travel to Australia. The six month tourist visas were granted in March 2013 and the applicants arrived in Australia [in] June 2013. They have one [child] (the third named applicant) who was born in Australia [in] 2014.

28. Both applicants lived and worked in [Cario]. The applicant completed a [degree] and worked as an [occupation] and the second named applicant has completed a [degree] and worked as [occupation] in Egypt.

29. The Tribunal has assessed the applicants’ claims against Egypt as their country of nationality and the receiving country for the purpose of the complementary protection criteria. The Tribunal is satisfied on the evidence before it, that the applicants do not have a right to enter and reside in any other country.

    Summary of Substantive claims

30. It was submitted that the applicants fear persecution because they are Coptic Orthodox Christians. The applicant claims he is an active pastoral worker in Egypt and serves as a deacon in [Church 1] in [Cairo]. As a deacon the applicant has an important role in the church. He serves at the altar during a mass, conducts readings and preaches at youth meetings at the church. He also assists the local priest visiting ill and needy people in and outside Cairo. Some of the meetings involve preaching, prayers and bible study. He is also involved in handing out food, clothing and assisting with health issues in small villages in Upper Egypt working with poor uneducated Christians who do not have access to the church. The applicant also claims that he and his wife assisted university students in their congregation.

31. The applicant claims that through his pastoral work he had responsibility working with a Christian man called “[Mr B]” who lived in Upper Cairo near Minya.

32. The applicant submitted that he had a public role in his community and the people he worked with saw him as the face of the church. Many times when conducting routine work he experienced problems. By way of example the applicant declared that when he and others would go to small villages and attend on a farm where there were both Muslim and Christian workers, they were threatened by the Muslim farmers and had to leave because they had no protection from the authorities. The applicant declared that he was unable to help poor Muslim families with food and running water because they would be perceived to be attempting to convert the Muslims to Christianity.

33. The applicant specifically claimed that he worked with a Muslim woman ([Ms C]) who sought to convert from Islam to Christianity. The applicant claimed he found out that [Mr B] wanted to marry [Ms C]. [Ms C]’s mother was a Christian and her father a Muslim extremist who forced her to follow Islamic teachings and prevented her from learning about Christianity.

34. The applicant declared that he introduced [Ms C] to his local priest ([Father A]) so that she could be taken away from her family and find out if she was serious about accepting Christianity or simply to marry [Mr B].

35. The applicant claims that it was through his regular attendance at [Mr B]’s home that he became known to extremists as the person assisting [Ms C]. The applicant claims that [Mr B]’s family was questioned about the disappearance about [Ms C] and his involvement became known to the authorities.

36. The applicant declared that due to his pastoral work and in particular his work with [Ms C] he came to the attention to the authorities and Muslim extremists on five occasions in the period January 2013 to April 2013.

37. The applicant claims that [in] January 2013, three men arrived at his home and took him to the national security force office [where] he was interrogated and beaten. He was questioned about his religion and why he was attending particular areas [and] what he knew about Isalm. The applicant claims he was questioned about the girls he assisted. He claims he was accused of assisting [Ms C] to convert from Islam to Christianity. He claims he was forced to sign a document but did not make enquires as to its contents and assumed it related to the questioning. He was released the following day.

38. [In] January 2013 the applicant said that the doorman of his building woke him up and told him that there was an attempt to steal his car. He claims that at this stage he did not know it was related to his pastoral work but two days later he received a threatening telephone call which he believes was connected to his pastoral work. He now believes the attempt to steal his car was targeted because of his work with the church.

39. [In] March 2013 he was travelling in his car from work and another car stopped at the traffic lights and rammed into his car. He got out of his car and was threatened by the driver and called an infidel. There was a traffic controller at the scene and the applicant took the registration of the car and made a police report. He claims it was a targeted attack because the other driver repeatedly drove into his car and called him an infidel.

40. [In] March 2013 the applicant claims he was travelling back home from work on a [bus] with [other] passengers. One of the passages had a long beard. He claims the driver told him that he was the one who encouraged Muslims to convert to Christianity. The applicant said he argued with the driver and one of the men on the bus put a knife to his throat. He was beaten and his wallet, gold cross and mobile phone were stolen. He claims the men asked about [Ms C]. He was able to escape when another car drove past and asked what was going on. He went into hiding at friend’s house for three months.

41. [In] April 2013 he was attending the funeral of a friend and a fight broke out between Muslim extremists and the persons who were attending the funeral. The applicant claims he was caught by the extremists and beaten and handed to the police. He was taken by the police to the national security force building. He was interviewed and they already had his file. The police told him that he has already signed a document admitting that he had insulted religion. He was released and told that he would be charged with insulting religion.

42. After he was released he went to see a lawyer about the charges. He was told that the authorities did not need a confession and they would bring false witnesses to give evidence against him.

43. He claims that police attended at his parent’s home and attempted to serve legal documents (summons) charging him with blasphemy and informing him of an upcoming court date. He was not present at the time. His parents did not take the summons and said they did not know where he was. The lawyer told him to escape from Egypt.

44. Although the first Tribunal had a number of concerns about the credibility of the applicant’s claims, the first Tribunal Member accepted the applicant’s claim that he was detained and questioned by the Egyptian authorities In January 2013 because he was accused of helping [Ms C] to Christianity.

    Evidence of [Father A]

45. The Tribunal took evidence by telephone from [Father A] at the hearing. This evidence was not before the Department or first Tribunal. The Tribunal found the evidence of [Father A] relevant and credible in assessing the applicants’ claim of religious persecution. 

46. [Father A] is currently based at [a] Coptic Orthodox Church [in] [Country 1].[3]. The Tribunal found [Father A] to be a credible witness and has relied on his evidence in support of the claims.

    [3] [Church’s website].

47. [Father A] said that he has known the applicant since he was at school. He confirmed that the applicant served as deacon at [a] Coptic Orthodox Church [Cairo]. The Tribunal noted that there are a number of different levels of deacons in the church and asked [Father A] for clarification of the applicant’s duties and position. [Father A] said that the applicant was at [a certain level] and he was actively involved in helping members of the Coptic community. He helped poor people both financially and spiritually. [Father A] confirmed that the applicant was involved with a Muslim woman ([Ms C]) who wished to convert to Christianity. The applicant brought [Ms C] to the church. [Father A] said there were other women the applicant assisted.  He said it was a very sensitive issue in Egypt. [Father A] said that he had met [Ms C] and she was now living in [Country 1] and has married another man who does not know she was Muslim. [Father A] said that he was not personally aware if the authorities in Egypt were seeking the applicant but he has heard that that Muslim people found out that he was helping Muslims convert and they were looking for him. He did not know if the authorities had interrogated him but heard that they wanted to arrest him on two occasions. He does not know more because he subsequently travelled to [Country 1].

1. After the hearing the Tribunal was provided with a copy of [Father A]’s passport and a letter from [a] Coptic Orthodox Church in [Country 1] in support of his identification and evidence. The Tribunal was also provided with statements from the applicant’s brother and uncle who reside in Australia.

   Country information

2. DFAT country information confirms that religion is central to identity in Egypt. Orthodox Christians represent about 8-10 per cent of the population (approximately 7-9 million). They are the largest religious minority in Egypt and the largest of the country’s 12 recognised Christian denominations.

3. DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. However, some Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means. Christians are also less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities, despite the lack of any official policy of discrimination against them. (3.33)

4. However more recent country information indicates that once again Christians are being targeted and the authorities have been unable to effectively prevent or prosecute individuals involved in sectarian violence.

5. For example, in 2017 the Department’s thematic briefing reports that Islamic State in Egypt is increasingly targeting Coptic Christians. The most recent attack was against a convoy of vehicles carrying dozens of Copts on pilgrimage to St Samuel Monastery near Minya, south of Cairo. Islamic State claimed responsibility for the attack, in which militants, some wearing Egyptian military uniforms, stopped the convoy and killed 29 Copts after many refused to recite the shahada. In response, the Egyptian government launched airstrikes against militant training camps inside Libya, which it said were connected to the attack. The Department reports that in February 2017, Islamic State in Egypt released a video claiming responsibility for the December 2016 bombing in Cairo. The video, Fight All the Infidels, contained footage of the December 2016 attack and vowed to target Christians in Egypt. Also in February 2017, Islamic State in Egypt circulated a ‘hit list’ of 40 names in the town of El Arish in North Sinai. Eight Copts were killed in two weeks, causing hundreds of families to flee the area. In March 2017, Islamic State in Egypt set up checkpoints in North Sinai, stopping cars and requesting identification, saying they were looking for Christians.

6. The Department reports that there has been an increase in violence against Egyptian Copts since 2016, following a relative lull in 2014-15. Prior to the December 2016 Cairo bombing, most incidents were relatively small in scale and occurred in the province of Minya, approximately 200 km south of Cairo. Minya, which has a large Coptic population, high concentration of Islamist activists, high rate of poverty, and low rate of education, has been particularly notable as a location for communal tensions with 37 attacks recorded in the past three years. DFAT assesses that occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular.

7. The 11 December 2016 bombing at the St Peter and St Paul Church, next to Cairo’s main Coptic Orthodox cathedral, marked an escalation in the scale of attacks. Twenty nine people were killed and 49 injured. Many were women and children. Unusually for Egypt, the attack, for which Islamic State claimed responsibility, was carried out by a suicide bomber. In a statement, Islamic State warned of more attacks to come.

8. The 9 April 2017 dual bombings in Tanta and Alexandria show that Islamic State in Egypt has expanded its reach from the Sinai Peninsula and is able to launch simultaneous attacks in multiple cities. At least 27 people were killed and 78 injured when an Islamic State suicide bomber attacked a Palm Sunday service at St George’s Coptic church in Tanta. Hours later, another Islamic State suicide bomber attacked St Mark’s Coptic church in Alexandria, killing 17 people outside the church. Police stopped the Alexandria bomber from entering the church where the head of the Coptic Church, Pope Tawadros II, was attending Mass.

9. In relation to Christians generally in Egypt, the Tribunal notes that country information confirms there is discrimination at all levels of Egyptian society against Christians and although discrimination on the basis of religion is prohibited under Egyptian law, there are reports that confirm that Coptic Christians continue to face official and societal discrimination and that this has been prevalent for decades. In its most recent country report DFAT states that that as an overwhelming Sunni Muslim country, Egyptian law and long standing practices are generally designed to safeguard the Muslim majority.

   Blasphemy laws

10. In assessing the country information the Tribunal has also considered the impact of Egypt’s blasphemy laws on the applicant who claims to have provided assistance to members of the Muslim community converting to Christianity.

11. The United States Commission on International Religious Freedom (USCIRF) provides the following information about Egypt’s Blasphemy laws:

    Article 98(f) of the Egyptian Penal Code prohibits citizens from “ridiculing or insulting heavenly religions or inciting sectarian strife.” Authorities use this “contempt-of-religion,” or blasphemy law to detain, prosecute and imprison members of religious groups whose practices deviate from mainstream Islamic beliefs or whose activities are alleged to jeopardize “communal harmony” or insult Judaism, Christianity or Islam.

12. Human Rights Watch noted that Egypt’s blasphemy laws curtail freedom of expression, which is guaranteed by the Egyptian Constitution.[4] Minority Rights Group International, in their 2016 Annual Report noted that Blasphemy accusations and related attacks remain a serious problem for Egypt's religious minorities, particularly Copts and Shi'a.

    [4]>

    The DAFT report of May 2017 provides the following information about Egypt’s Blasphemy/Defamation of Religion laws:

    Before the 2011 Egyptian 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 the Sisi government. In January 2015, Sisi issued a decree permitting the government to ban any foreign publications deemed offensive to religion. Under the Sisi government, 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 (see also ‘Atheists’). The increased use of social media has reportedly been a contributing factor in the rise of such cases, as more people have had visibility of potentially controversial material.

    According to the US State Department, at least 20 individuals were prosecuted and eight individuals convicted in 2015 under Article 98(f). The exact numbers of those prosecuted in 2016 are unclear. However, some of the more high-profile recent arrests and prosecutions include… the sentencing of four Christian teenagers in Minya to between three and five years’ imprisonment in March 2016 for a video mocking an Islamic State execution that included a pre-beheading prayer.

    DFAT understands that those accused of blasphemy rarely have an adequate right of defence and are generally convicted. 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. In June 2016, two Members of Parliament reportedly launched a movement to repeal Article 98(f) on the grounds that it violated the Constitution’s articles on freedom of belief and did not fit within sharia.

13. In the 2017 UK Home Office refers to the Eshhad and The Tahrir Institute for Middle East Policy in their article, Eshhad Issue Brief: Egypt’s Blasphemy Laws noted that: 

    Some 41 per cent of blasphemy cases are filed against Christians, though they make up only about 10 percent of Egypt’s population. Such cases often rest on flimsy evidence, including Facebook posts. In one prominent case, Kirollos Shawky Atallah was convicted after liking a Facebook page that later posted anti-Islamic materials.....In another prominent case, a Coptic teacher in Luxor, Dimyana Obeid Abdel Nour, was charged in June 2013 with “denigrating Islam” after students accused her of insulting the Prophet Muhammad during a lesson. In June 2014, an appeals court upheld her six-month sentence, overturning an earlier ruling that only imposed a fine. In July 2015, three Christians were charged with “showing contempt for Islam” in Alexandria after distributing dates at sunset during Ramadan that had Bible verses on their packaging; their case was dropped in February [2016]. In September 2015, Maher Fayez, an 18-year-old student in Beni Suef, was accused of blasphemy for comments he made on Facebook that allegedly insulted Islam and spent three months in jail without being tried.

    ...While the state is the official judicial authority in Egypt, the tremendous influence of al-Azhar—the Sunni mosque and university establishment—allows its clerics to serve as unofficial enforcers of blasphemy laws. For example, in May 2015, television presenter Islam al-Beheiry was charged with blasphemy after the authorities at al-Azhar filed a complaint that his program “made people question what is certain in religion.” After nearly a year of trials and appeals, Beheiry was convicted in February 2016 and will serve one year in prison. In September 2015 al-Azhar officials demanded that several Cairo booksellers stop selling the “anti- Islamic” book ‘Blasphemy in Egypt’ and threatened to file charges of blasphemy if they did not comply.

    ...While under Sisi, who claims to protect Egypt’s minorities, officials’ statements have been more positive, the use of blasphemy charges continues unabated. There have been more charges of blasphemy under Sisi then there were under Morsi.’

14. Some reports state that since Sisi took power in 2013 human rights conditions in Egypt continued to deteriorate. Human rights organisations found that around 60,000 people were imprisoned between 2013 and 2017 and the authorities had to build 10 additional prisons to accommodate the prisoners. It has been reported that since declaring a nationwide state of emergency in 2013 President Sisi has been granted extended powers to monitor and intercept all forms of communication and correspondence, impose censorship and confiscate extant publications, impose curfews.[5]

    State protection

    [5] Egypt’s Emergency Law Explained, 11 April 2017, Aljazeera >

    In light of the increase in sectarian violence targeting Coptic Christians it is also necessary for the Tribunal to consider the level of state protection available in to Coptic Christians in Egypt.

15. The Department’s 2017 Thematic Report on Egyptian Copts provides the following information on state protection:

    In urban areas, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered to Copts by individual security officials. The level of police presence in rural and poorer areas is generally less than in the cities, and as a consequence Copts are less safe in these areas.

16. The Immigration and Refugee Board of Canada in a response Egypt: Situation of Coptic Christians, including treatment; state protection available (2014-May 2015), citing a range of sources offers a less optimist assessment than that provided in the Department’s Thematic Brief:

    In its 2015 annual report, Amnesty International (AI) states that Egyptian authorities "failed to tackle discrimination against religious minorities, including Coptic Christians" (AI 2015). According to CSW, there are “longstanding allegations that the authorities have failed to provide sufficient protection" for the Coptic community and that "inadequate police response has engendered a climate of impunity" (CSW 26 September 2014). Human Rights Watch indicates that, "in many cases, authorities failed to intervene" in attacks on Christian establishments (29 January 2015). According to the Assistant Professor, there have been complaints by Copts that the police are slow to respond, and "cannot be relied upon to protect Copts in situations of targeted violence" (Assistant Professor 14 April 2015). The Assistant Professor indicated that, "[m]ostly, the perpetrators do not get prosecuted because the government opts for conciliation meetings and the charges are dropped or not pursued" (ibid.). The same source indicated that "in almost all cases" victims must drop charges against those who damaged their properties or assaulted them in order to "'buy peace'" and sometimes people also choose to leave the area, usually moving to cities (ibid.).

17. In 2017 Amnesty International reports that religious minorities, "including Coptic Christians…, continued to face discriminatory restrictions in law and practice and inadequate protection from violence" (Amnesty International 22 Feb. 2017, 149).

18. In 2015 the US International Religious Freedom Report made the following comments on ability of the Egyptian authorities to provide state protection to minority religious groups:

    The government frequently failed to prevent, investigate or prosecute crimes targeting members of religious minority groups, which fostered a climate of impunity, according to a prominent local rights organisation. The government often failed to protect Christians targeted by kidnappings and extortion according to sources in the Christian community, and there were reports that security and police officials sometimes failed to respond to these crimes, especially in Upper Egypt.[6]

    [6] United States, Bureau of Democracy, Human Rights and Labor, International Religious Freedom Report for 2015 >

    According to the 2016 United States Commission on International Religious Freedom (USCIRF) Annual Report:

    During the past year, the government’s efforts to combat extremism and terrorism have had a chilling impact on human rights and civil society activities in the country.’

    Against a backdrop of deteriorating human rights conditions, the Egyptian Government has taken positive steps to address some religious freedom concerns, including intolerance in religious curricula and extremism in religious discourse. In addition, President Abdel Fattah al-Sisi continued to make public statements encouraging religious tolerance and moderation... There were notably fewer sectarian attacks against Christians and other religious minorities, and investigations and prosecutions continued for the unprecedented scale of destruction of churches and Christian property that occurred in the summer of 2013. However, other past large-scale sectarian incidents have not resulted in prosecutions, which continued to foster a climate of impunity.’

    In addition, the longstanding discriminatory and repressive laws and policies that restrict freedom of thought, conscience, and religion or belief remain in place. During [2015], there was an increase in Egyptian Courts prosecuting, convicting, and imprisoning Egyptian citizens for blasphemy and related charges. While the 2014 constitution includes improvements regarding freedom of religion or belief, the interpretation and implementation of relevant provisions remain to be seen, since the newly seated parliament has yet to act on the provisions. Based on these ongoing concerns, for the sixth year in a row, USCIRF recommends in 2016 that Egypt be designated a "country of particular concern," or CPC, under the International Religious Freedom Act (IRFA). USCIRF will continue to monitor the situation closely to determine if positive developments warrant a change in Egypt's status during the year ahead.’[7]

    [7] United States Commission on International Religious Freedom (USCIRF) 2016 Annual Report: Egypt, Key Findings, April 2016, 2016 Annual Report.pdf Accessed 19 Oct 2016 

19. On 20 May 2015, a Senior Fellow at the Hudson Institute’s Centre for Religious Freedom, Samuel Tadros, gave testimony before the United States government’s House Committee on Foreign Affairs:

    …Failure by the Sisi regime to uphold the rule of law and protect the country’s Christians from attack bodes ill for the Middle East’s largest Christian community. While the Egyptian regime believes that its resort to reconciliation sessions instead of punishing the attackers helps in restoring and maintaining order, the reality is the exact opposite. The lack of punishment has created a culture of impunity, which in turn has become a culture of encouragement. Fanatics have rightly concluded that attacking Copts, not only will go unpunished, but more importantly will result in the mob’s demands being met. The Egyptian regime needs to offer better protection of its most vulnerable citizens preventing the attacks from taking place, and enforce the rule of law by bringing attackers to justice. The Egyptian regime needs to understand that protecting religious minorities is not a luxurious act to be done after serious security threats are dealt with or that punishing those attacking them can wait until stability and security is restored. Those attacking Copts share the same hatreds that fuels the terrorists and no stability or security can be achieved if criminals are not punished. Likewise, blasphemy accusations should not be used as a means to terrorize religious minorities.[8]

    Do the applicants have a well-founded fear of persecution for a convention reason?

    [8] Tadros, S 2015, ‘Egypt Two Years After Morsi Part 1’, Hudson Institute’s Center for Religious Freedom, 20 May

20. The issue for the Tribunal to determine is whether the applicants have a well-founded fear of persecution for a convention reason in light of the country information and Tribunal’s factual findings above.

21. The Tribunal finds that the applicant and his wife are Coptic Orthodox Christians born in Egypt. The Tribunal accepts that the applicants are nationals of Egypt and assessed their claims against Egypt for the purposes of s.36(2)(a) and as the receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).

22. The Tribunal has had regard to the evidence of [Father A] and accepts the applicant was an active pastoral worker in Egypt and served as a deacon in [Church 1] in [Cairo].

23. The Tribunal accepts that the applicant and his wife are educated Christians who were active in their Christian community. The Tribunal accepts the applicant travelled to small villages and attended on farms where there were both Muslim and Christian workers. The Tribunal finds that community service engaged by the applicant is known in Egypt as (Khidma) and is common among the Egyptian Coptic community. The practice is based on biblical scripture (Mathew 25: 35-40) and is often referred to in many Coptic churches as Khidmet Ikwet il-rab (serving the brethren of the Lord).

24. The Tribunal initially had concerns about the credibility of the applicant’s claim that he assisted [Ms C] to convert from Islam to Christianity, that he was detained and questioned by the authorities and he was summonsed to appear in court and obtained legal advice prior to departing Egypt.

1. The Tribunal notes for example that the applicant was granted his Australian visa in March 2013 but only left Egypt in June 2013. The Tribunal noted that it was surprising that the applicant would not have fled Egypt sooner in light of the fact he was detained by the National Security forces in January 2013 and was beaten by the authorities in April 2013 and accused of insulting Islam.

2. On the other hand the Tribunal finds that the applicant’s evidence at the hearing was consistent with his written claims. He was also able to provide sufficient detail at the hearing about his claims and the circumstances in which he obtained legal advice when he became aware the authorities were attempting to serve him with a summons.

3. The Tribunal notes that the applicant’s claims regarding [Ms C] are supported by reports in the Middle East Eye which state that since 2011 "dozens of instances of inter-communal tension and violence" were reported (Middle East Eye 16 Nov. 2017). The same source indicates that that there were cases where relationships between Muslim women and Christian men "were considered a matter of dishonour sometimes leading to disputes and even violence…"[9]

   [9] IRBC Egypt: Situation of Coptic Christians, including treatment; availability of state protection (2016-May 2017)

   Research Directorate, Immigration and Refugee Board of Canada, Ottawahttp://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=457090

4. Further, as stated above, the Tribunal found [Father A] to be a credible witness and who was able to corroborate the applicant’s evidence when questioned by the Tribunal at the hearing. The Tribunal notes that [Father A] did not overstate his evidence and made appropriate concessions when he was unable to comment on the applicant’s claims. The Tribunal notes that the evidence of [Father A] was not before the Department or the first Tribunal who had raised concerns about the credibility of some claims.

5. The Tribunal’s Guidelines on the Assessment of Credibility (July 2015) state this:

   11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.

6. One of the fundamental principles of protection claims assessment is that applicants ought to be given the benefit of the doubt. The UNHCR Handbook states:[10]

   “ After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. […] It is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”

   [10] UNHCR Handbook, paragraph 203

7. The Tribunal finds that in assessing the applicant’s claims it is necessary to have regard to the religious persecution in Egypt at the time when the applicant was first detained by the authorities. Country information referred to in the delegate’s decision confirms that sectarian violence and lack of protection for religious minorities continued in 2013. Numerous Coptic Churches were burned and damaged in an upsurge in Islamic violence against Coptic Christians. The Tribunal notes that the applicant came to Australia during the height of political and religious unrest in Cairo. President Morsi of the Muslim Brotherhood was elected to power in June 2012. In July 2013 the army intervened to remove Morsi from power. Since the July 2013 military intervention the authorities have initiated criminal proceedings against senior Muslim Brotherhood figures in relation to the deaths of protestors during the Morsi Government.

8. In the circumstances, the Tribunal is prepared to accept that the applicant, through his pastoral work in the Coptic Church, was introduced to [Ms C] and asked to provide assistance when she wanted to marry [Mr B]. The Tribunal accepts that the applicant introduced [Ms C] to [Father A] in an attempt to ascertain her motivations in converting to Christianity. In the circumstances, in light of the applicant’s profile and charity work the Tribunal accepts that he may have come to the attention of the authorities and was charged under Blasphemy laws when the Muslim Brotherhood were in power in Egypt.

9. The Tribunal accepts the applicant’s claim that there was an attempt to steal his car and that he was involved in a car accident in March 2013 where he was abused and called an infidel. The Tribunal finds however the applicant’s claim that he was targeted in each incident speculative and not supported by the evidence.

10. The Tribunal accepts that the applicant may have been threatened and robbed when travelling home on a [bus]. The Tribunal notes that the applicant claims not to know the attacker or the people on the bus. It is unclear how the attacker on the bus was able to recognise the applicant and knew about his involvement in the Coptic Church.

11. The Tribunal does not accept these incidents are related or that the incidents were premeditated and that he was attacked because he encouraged Muslims to convert to Christianity.

12. Against this background, the Tribunal must assess the applicant’s claims looking to the reasonably foreseeable future having regard to the current country information detailed above.

13. The Tribunal finds that despite President Sisi declaring a nationwide state of emergency in April 2017, sectarian violence targeting Coptic Orthodox Christians has been on the increase in Egypt. The Tribunal finds that the attacks are religiously motivated and have continued despite the assurance of the Egyptian state’s willingness to protect Copts against attacks by radical non-Christian elements and despite legal guarantees expressed in in the Egyptian Constitution.

14. The Tribunal finds that the harm feared by the applicant is from Islamic extremist groups because he is an active member of the Coptic Orthodox Christian church in Egypt. Despite the election of a new president in May 2014 and the crackdown on the Muslim Brotherhood, the evidence before the Tribunal does not indicate that the situation in relation to state protection for Coptic Christians has changed. The Tribunal finds that the applicant may still be subject to charges brought under Egypt’s Blasphemy laws. The Tribunal has had regard to country information and finds that the Blasphemy laws disproportionally impact on religious Christian Copts in Egypt. The Tribunal is satisfied the persecution feared by the applicants is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment. 

15. The country reports and recent developments in Egypt indicate that while a state of emergency had up to now contained sectarian violence, these disturbing recent events indicate to the Tribunal that sectarian violence still occurs and there has been no appreciable change in the treatment of Coptic Christians. The Tribunal is satisfied that the applicants have a well-founded fear of being persecuted by non-state actors as well as by the state if they are returned to Egypt, now or in the foreseeable future.

16. Accordingly, the Tribunal finds that it would not be reasonable for the applicants to relocate as the discrimination against Christians is pervasive across Egypt and in view of the applicant’s experiences prior to leaving Egypt, the Tribunal finds that he will not be safe or that he could be protected by the state.

17. Having regard to the applicant’s profile as a Coptic Christian who is active in his church and community and has come to the attention of Islamic extremists and the authorities there is a real chance that the applicant is at risk of serious harm if he returns to Egypt now or in the reasonably foreseeable future. The Tribunal finds that applicant’s fear of persecution because of his religion is well-founded.

18. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

19. The Tribunal is satisfied that the first named applicant’s spouse and [child] are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the second and third named applicants will be entitled to a protection visa provided they meet the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Christopher Smolicz
    Member