1622087 (Refugee)

[2018] AATA 422

1622087 (Refugee) [2018] AATA 422 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622087

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Paul Millar

DATE:1 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 01 February 2018 at 6:59pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Coptic Christians – Discrimination in employment – Fear of harm from Moslems – Wife’s assistance with poor Christian woman – Attempted kidnapping of child – Credibility Concerns – Inconsistent behaviour

LEGISLATION
Migration Act 1958, ss 36, 424A, 438(1)(b), 499
Migration Regulations 1994, Schedule 2

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).  The first named applicant is [an age] year old male (‘the applicant’).  The second named applicant is his wife and the third named applicant is their [age] year old son.  The applicants, who the Tribunal finds to be citizens of Egypt, applied for the visas [in] November 2013.[1]  The applicant’s wife and child applied as members of the applicant’s family unit who did not have their own protection claims.  The delegate refused to grant the visas [in] November 2013.  

   [1] The Tribunal’s finding on citizenship is based on copies of pages from the applicants’ Egyptian passports which appear on the department file [at] folios 43 – 124.

2. The delegate’s decision was affirmed by this Tribunal (differently constituted and referred to in this decision as ‘the first Tribunal’) on 19 February 2015.[2]  The Federal Circuit Court remitted the case to the Tribunal for reconsideration [in] November 2016.[3]  The Court held that the Tribunal failed to have proper regard for documentary evidence submitted by the applicant.[4]  The applicant and his wife appeared before the Tribunal on 25 August 2017 by way of videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative appeared at the hearing.

   [2] See RRT Case Number 1319178 19 February 2015.

   [3] See [Case Details deleted]. 

   [4] The Court found that the first Tribunal fell into jurisdictional error by rejecting as false a document purportedly issued to the applicant’s wife by police in Egypt on the ground that she was not in Egypt at that time.  The Court found that, based on the evidence before it, the applicant’s wife was in Egypt at the relevant time.

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (‘the Department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[5]

   [5] The Tribunal has taken account of DFAT Country Information Report Egypt 19 May 2017 and relies on it to the extent cited further below in this decision.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to the evidence of the applicant and his wife to the department and the Tribunal, the applicants claim protection on the ground that they will suffer serious harm in Egypt because they are Coptic Christians.[6]  The Tribunal holds the following concerns about the credibility of the evidence of the applicant and his wife. 

   Credibility concerns

   Expansion of protection claims

   [6] Their evidence to the Department and the Tribunal comprises the contents of their protection visa application forms; statutory declaration made by the applicant [in] September 2012; the evidence of the applicant at the interview with the delegate for which there is an audio recording on the Tribunal file and to which the Tribunal has listened; the evidence of the applicant and his wife at the hearing before the first Tribunal and their evidence at the hearing before this Tribunal.  The Tribunal also had access to the department file relating to applications made by the applicant and his family for visas to enter Australia.  There is no information in this file that is relevant to the grounds on which this review has been determined.

9. The scope of the applicant’s protection claims has expanded greatly from those advanced by the applicant to the Department.  In this respect, to the Department, in his statutory declaration, the applicant claimed that for being Christian he suffered discrimination in employment from Moslems, including an employer pressuring him to convert to Islam.  The remainder of the declaration is devoted to harm the family suffered because of their religion at the hands of Moslems in what the applicant said was a ‘dangerous’ area.  In this respect, Moslems would scare his wife in the street, tell her to take off her cross, throw water on her and threaten to throw acid on her if she did not take off her cross.  The applicant stated that on one occasion Moslems threw acid on her clothes and when she was crossing a bridge a man snatched a cross from her neck, a matter she reported to the police.  Also in the context of harm in the neighbourhood, because they were the only Christian family in their apartment block, objects would be thrown at their home, breaking windows and damaging property.  A microphone from the local mosque was placed outside their window through which anti-Christian remarks were made.  Moslems in the area would tell them to convert or leave.  Due to all of these problems, many times the family would leave their home and stay with the applicant’s mother-in-law.  Because of these same problems the family left Egypt to live in [Country 1].

10. At his interview with the delegate, the applicant was asked what problems he had in Egypt because of his religion.  The applicant mentioned discrimination in employment.  He then again referred to Moslems in his neighbourhood spitting at his wife when she wore a cross, giving her verbal insults, throwing water on her, threatening to throw acid on her if she did not wear a veil and remove her cross.  He said they threw acid on her clothes once.  He mentioned Moslems in the area telling them to convert or leave and a microphone from the local mosque being placed at a window of the family’s home causing them disturbance.  Because of these problems the family stayed with the applicant’s mother in law very often and for long periods.  Their church told them to leave Egypt after a final threat to kill was made in 2007.  Through the interview the delegate asked the applicant why Moslems had treated them this way.  The applicant said that it was because he and his family are Christians and the Moslems in their neighbourhood were fanatics.  At a later stage of the interview, the applicant said that if he returns to Egypt his son will be kidnapped and he and his wife will be killed if they do not convert.  The Mullahs in their neighbourhood are still looking for them.  When asked why this was, the applicant said that it was because they are good Christians who served their church and others.  In this respect, when asked how he practiced his religion, the applicant said that he helped the church by raising money to go to poor Christian families.

11. To this Tribunal, the applicant again claimed that Moslems in the same neighbourhood had harmed him and his wife because they were Christians and because of their service for the church.  However, to the Tribunal, both the applicant and his wife said that from early 2007 they had to stop living in their marital home.  This was because, not long before that, the applicant’s wife had taken Y, a poor Christian woman, to a monastery against the will of certain Moslem people with whom she had been involved.  Those people started making threats to both the applicant and his wife over the telephone and also by letter.  They then apprehended and assaulted the applicant’s wife in the stairwell of their building demanding to know the whereabouts of Y.   On that same day, the family commenced living in other places in Egypt in fear of harm from these people because they were very scared. 

12. They did not stay more than one or two weeks in each place because they would be monitored and neighbours would say someone was asking about them.  On occasions, the applicant would leave his wife and child in their hiding place and he would come to Cairo for his work but he did not stay long.   His employer was aware of his situation and eventually organised for him to take up employment in a branch office in [Country 1].  For his safety and because of the threat posed by Muslims wanting to kill him and his wife for her assistance to Y, the applicant fled Egypt in August 2007 to live in [Country 1].  His employer could only arrange for him to leave so his wife and child remained in Egypt and continued moving from place to place for their safety.

13. Even so, they encountered a number of instances of harm.  According to the applicant, on two occasions, people approached his wife on the street in vehicles attempting to hit her but she was able evade them (the applicant claiming that she still had a scar from one of these incidents).  In October 2007 some men approached the applicant’s wife and tried to abduct her son.  In April 2008, there was another attempt to kidnap their son, when the applicant’s wife was called by the school her son was attending and told that a woman was there claiming that she had been sent there to take their son away. For their safety, the applicant’s wife and child joined him in [Country 1] in June 2008.  On a return trip to Egypt in mid-2012, people again approached the applicant’s wife trying to attack her, on this occasion, taking a necklace off her and about which she made a report to the police.

14. As advanced to the Tribunal, the whole crux of the applicant’s protection claims and the evidence of his wife in support of those claims was that because of her assistance to Y, certain Moslems wanted to harm the applicant and his family.  It was threats from those people that caused the applicant and his family to stop living in the marital home and, in effect, go into hiding before fleeing from Egypt to save their lives.  Their flight was preceded by two attempts to kidnap their child and attempts to harm the applicant’s wife as mentioned above.  The Tribunal regards this as a significant expansion on the protection claims advanced to the Department by the applicant. In his statutory declaration and in his evidence at his interview with the delegate, the applicant makes no mention or claim whatsoever about his wife assisting a poor Christian woman, taking her to a monastery and, for that reason, the family being threatened and attacked, including attempts to kidnap their child, causing them to leave their home, live in different places and then leave Egypt. 

15. In his statutory declaration he mentioned the incident in which a cross was snatched from his wife but that was in the context of the harassment the family encountered from Moslems in the neighbourhood because they were Christian.  He mentioned to the delegate and in his declaration staying with his mother in law for periods but again said that this was due to harassment from local Moslems in the neighbourhood.  To the delegate he mentioned a fear of his child being kidnapped but did not say that kidnapping attempts had been made.  To the delegate he said that Moslems in their neighbourhood were looking for them but this was again in the context of the harassment they encountered in that area because they were Christians.  In his declaration the applicant referred to a document issued by the church outlining all of the problems they faced.  In this respect, to the Department, the applicant submitted a letter from a church in Cairo stating that the applicant and his wife used to serve the ‘poor and needy’ for the church and faced ‘lots of problems’.  He submitted a police report of July 2012 referring to his wife reporting someone snatching a chain from her neck.  Finally, he produced a letter from another church in Egypt stating that the family had been ‘exposed to persecution’ including being ‘threatened to be killed and abducted …..  continuously bullied, harassed, threatened and harmed  …’.[7]

    [7] These documents appear at folios 75, 77 and 78 of Department [file].

16. These documents fall well short of constituting any mention of the claims the applicant makes to this Tribunal about his wife helping a Christian girl and the events and instances of harm the applicant claims followed from that.  In his declaration the applicant said he would provide a more detailed statement but none was submitted to the Department.  At any rate the applicant had ample opportunity at his interview with the delegate to advance the claims he now makes to the Tribunal but, as discussed above, he failed to do so.  The Tribunal put to the applicant that the omission of those significant and crucial claims from his statutory declaration and his evidence at his interview with the delegate cast significant concern over his credibility. 

17. In response, the applicant said that he had never applied for refugee status before. He did not know the procedures as to how that would be done. He said that his English was not good at that time. When he made his application for a protection visa, he did so as the main applicant thinking that his wife and child would be included by default. The Tribunal does not accept that any of those factors would prevent the applicant from advancing to the Department the very significant and crucial claims on which he now relies, if those claims are true.

18. The applicant also said that, at his interview with the delegate, he was told he should answer only what he was asked and say no more.  At his interview with the delegate, he answered only for himself thinking that the delegate was going to interview his wife.  He had submitted supporting documents that relate to his wife but the delegate did not ask questions about them.  He thought the delegate would question his wife on those issues. The Tribunal has listened to an audio recording of the interview with the delegate and is satisfied that the applicant was questioned in a manner that would have easily enabled him to advance the significant and crucial claims on which he now relies.  His assumptions he made about how his wife would be questioned, do not explain or excuse his failure to himself advance to the delegate the significant claims he now makes about his wife’s assistance to a young Christian woman and the events he claims followed from that.

19. Pursuant to s. 424A of the Act, by letter dated [in] October 2017, the Tribunal again put this issue to the applicant. In response, in a written statement dated [in] November 2017, the applicant referred to his accounts in his statutory declaration and at his interview with the delegate submitting that he did mention the harm his family suffered in Egypt. The Tribunal has examined those accounts and the point is that they do not constitute mention in any meaningful way of claims the applicant now advances about his wife assisting a Christian girl and the events that followed from that.

20. The applicant submitted that at his interview with the delegate he said that his declaration was only a summary of the problems the family had in Egypt. He submitted that he offered to elaborate further if the delegate wanted that and had the delegate asked him to do so he would have stressed the importance of letting his wife give evidence. He submitted that the delegate knew that his wife was present and he thought that his wife would be interviewed.  The Tribunal is satisfied that this applicant was questioned by the delegate in a manner that would have easily enabled him to mention his wife’s assistance to a Christian girl and the events he claims followed from that.  If those claims were true, the applicant could easily have mentioned them regardless of his assumptions about whether or not his wife would be interviewed; whether or not his declaration was just a summary and whether or not he was invited to elaborate further on his evidence.

21. The applicant then submitted that at the ninetieth minute of the interview he specifically mentioned “the attempted kidnapping” of his child and he claimed that the interpreter did not translate that evidence.  It is correct that, at that part of the interview, where asked if there were any other events he wished to talk about that occurred in Egypt, there is no mention of him responding that there was an attempted kidnapping of his child. The only evidence he gave on that subject was further in the interview when he said that he was afraid that his son would be kidnapped if the family returned to Egypt.  Again, this was all in the context of a fear of harm from Moslems in his particular neighbourhood with no specific mention about his wife assisting a Christian girl and the trouble they had as a result. Even if, as the applicant now claims, he mentioned in some way an attempted kidnapping of his child, that does not explain why that crucial claim was not advanced in his statutory declaration and at any earlier stage of the interview with the delegate where he had been questioned closely as to what trouble he and his family had in Egypt for being Christians.[8]

    [8] Accordingly, the Tribunal saw no need to obtain an independent translation of the interview.

1. The applicant also submitted that at another stage of the interview he told the delegate that the family were ‘moving around a lot’ but the only reference the Tribunal can find in his evidence at that interview to the family not living in their own home was his evidence that they stayed a number of times at the home of his mother-in-law.  That is a very different account from his account to the Tribunal that they lived in numerous different places from early 2007; evidence he did not advance in his statutory declaration or to the delegate.  The applicant submitted that the work he and his wife were doing in Egypt related to returning kidnapped girls to their families, work that would make them and others who do that work the targets of fanatic extremists.  Assuming that is so, that would still not explain or excuse the applicant’s failure to advance crucial claims to the Department.

2. Also in response to the Tribunal’s letter, the Tribunal received submissions from the representative dated 2 November 2017.  The representative referred to materials related to guidance on the assessment of credibility, in essence, submitting that if the applicant was generally credible then he should be afforded the benefit of the doubt and that the Tribunal ought consider the possibility that these crucial claims could be true.[9]  The Tribunal has considered those materials but the claims in question are crucial and go to the credibility of the applicant and his wife as witnesses.  This is not an appropriate case to afford the benefit of the doubt or proceed to determine the review on the basis of the possibility that the claims could be true.

   [9] The representative made similar submissions by letter dated 18 August 2017.

3. The representative also made submissions on this issue by letter dated 8 September 2017 in which the same submission was made about the applicant and his wife thinking that she would be interviewed by the delegate and given the opportunity to advance the crucial claims on which they now rely.  Similar submissions were made on this issue by the representative at the Tribunal hearing. For the reasons already given, the Tribunal is not satisfied that any such assumptions can explain or excuse the failure of the applicant, when given ample opportunity to do so in his statutory declaration and when questioned by the delegate, to advance the crucial claims on which he now relies.  

4. This particular credibility concern was also explored with the applicant and representative by the first Tribunal including pursuant to s.424A. The Tribunal has considered the claims and submissions made by the applicant, his wife and representative on that matter to the first Tribunal. This Tribunal considers that, in essence, the applicant and representative advanced much the same explanations as those discussed above, related to inexperience with the process of applying for protection and misunderstandings about the applicant’s wife giving evidence at the interview with the delegate. In addition, it was submitted that it was stressful for the applicant to give evidence at the interview with the delegate. The Tribunal can acknowledge that submission but it does not excuse or explain his failure to advance crucial claims. Another additional submission was that the applicant told his representative about an attempted kidnapping of his child, but, because the applicant did not witness the event his representative told him not to mention it to the Department. The Tribunal does not believe that, if attempts to kidnap the applicant’s child had truly been made, they would have been told not to mention it to the delegate (for whatever reason) and that the applicant himself would not tell the delegate about that.

   Behaviour that is inconsistent with applicants in genuine fear of harm

5. The Tribunal held concerns about a number of aspects of the behaviour of the applicant and his wife, as related in their evidence at the hearing before the Tribunal, which did not impress the Tribunal as being the behaviour of applicants in genuine fear of harm.  First, the Tribunal was concerned by the evidence of the applicant that, in the period from January 2007 until August 2007, he continued to undertake his employment in Cairo while at the same time claiming to have gone into hiding in fear for his and his family’s safety.  The Tribunal could appreciate the need for the family to have funds on which to live and that the applicant’s employment ultimately provided the means for them all to leave Egypt.  Even so, it still seemed incongruous to the Tribunal for the applicant, on the one hand, to claim to be in hiding, but, on the other hand, to go to his place of work where the people he fears may well have located and harmed him.

6. A further concern in this respect was the applicant’s evidence and the evidence of his wife about their willingness to return to Egypt a number of times after fleeing from that country to save their lives. In this respect, after fleeing from Egypt in August 2007, to the Tribunal, the applicant said that he returned there in October 2007 after the first attempt to kidnap his son. He remained in Egypt on that occasion for approximately two months staying in different places while attempting to persuade his employer to provide some means of his wife and child going to live with him in [Country 1], advances that were unsuccessful.  His employer told him to sponsor his wife and child from [Country 1].

7. To the Tribunal, the applicant said that he made two more trips to Egypt with his wife for her to undergo major surgery, the second trip being necessary due to complications arising from the operation performed on the first journey.  On one occasion he travelled to Egypt alone, staying briefly, because his father was not well.  To the Tribunal, the applicant said that in addition to travel to Egypt for major surgery, his wife twice returned to Egypt by herself to see her mother who was seriously ill in hospital.  She travelled back to Egypt again in the middle of 2012 to see her family before coming to Australia, her mother being very ill. She also returned to Egypt on this occasion to obtain important documents and close bank accounts.  In her evidence, the applicant’s wife gave a similar account of making these return trips to Egypt.

8. Finally, the Tribunal was also concerned by the evidence of the applicant and his wife at the hearing about the decision to stop living in [Country 1] and their reason for travelling to Australia in mid-2012.  In this respect, when asked why he and his family left [Country 1] July 2012 and came to Australia, the applicant said that he had to have employment to be able to remain in [Country 1]. At that time, he was aware that his employer was closing its operations and he would not have employment.  He could not return to Egypt so he and his wife began thinking about places they could go where they could claim refugee status.  He referred to countries such as [Country 2], Australia and [Country 3].

9. The Tribunal asked the applicant when he began thinking about going to these countries to claim refugee status. In response, the applicant said that he began doing this when his employer began retrenching workers and he was told that he would be the next to lose his employment. He said that it was in 2012 that he began thinking about coming to Australia to apply for refugee status. In her evidence on this issue, the applicant’s wife also said that they stopped living in [Country 1] because of the likelihood of the applicant losing his employment and, thereby, their ability to remain there. 

10. The Tribunal understood from the evidence of the applicant and his wife that their attempts to seek permanent sanctuary from harm in Egypt, in the form of investigating countries where they could apply for refugee status, were not made until 2012 when the applicant’s future employment became uncertain. It concerned the Tribunal that, after fleeing Egypt for their safety, the applicant and his wife would be content to remain in [Country 1] on a temporary basis contingent on the applicant holding employment for almost five years before finally taking steps to investigate travelling to a country where they could remain on the basis of needing protection.

11. The Tribunal put to the applicant that his evidence about continuing to attend his employment after going into hiding, the family returning to Egypt a number of times after fleeing for their safety in 2007 and 2008 as well his account of seeking a country for the purpose of protection in 2012, long after fleeing from Egypt, suggested that, in fact, the applicant and his wife were not genuinely in fear of harm and that he and his family did not leave Egypt for the reasons they claim. 

12. In response, the applicant said that he did not attend his employment daily in the period from January to August 2007. He went infrequently and the people he claims to fear did not know where he worked. In addition his employment was a means of finding a way out of Egypt.  In submissions of 8 September 2017 the representative also submitted that it was out of necessity that the applicant had to continue working and as a Christian he was accustomed to facing harm.  The Tribunal can allow for the need for the applicant to work, but, even if he went infrequently, it is not beyond the bounds of possibility that the people he fears could have located him at his work just as they appear to have been able to locate his wife and child when making kidnapping attempts.  The necessity to maintain an income and find a way of leaving Egypt does not overcome the incongruity of the applicant’s evidence about being willing to risk his safety to go to his work when, at the same time, he claimed that he and his family were living in various different places to save their lives in advance of actually leaving the country. 

13. In terms of travel back to Egypt, the applicant said that he had to accompany his wife for surgery and they only stayed at the hospital. His wife had to return to Egypt in 2012 to obtain documents and close bank accounts. He added that people in [Country 1] were given free tickets to travel back to their country and one month holiday. He was the only person who did not take advantage of this.  When this concern was put to the applicant’s wife, she said that she had to travel back to Egypt for surgery because the doctors in [Country 1] could not diagnose the pain she was in.  She said that at the time she was pregnant.  As a result of the surgery she cannot have any more children.  The Tribunal is not persuaded by these comments from the applicant and his wife.  In addition to travel for medical purposes, they also indicated that they returned to Egypt to see family having claimed they had to flee from the country to save their lives.  Their claim about returning to Egypt in 2012 to close bank accounts and obtain documents was unconvincing in terms of why that would even be necessary at that stage and why they had to do that themselves.

14. At the hearing the representative submitted that even if the applicant’s wife returned to Egypt a number of times they were still in fear of harm. The representative claimed that the Department allowed applicants to return to their own country within three weeks of being granted protection.  In submissions of 8 September 2017 the representative submitted that Christians in Egypt were accustomed to facing harm in Egypt and they had to return there out of necessity.  If the applicant and his wife fled from Egypt in 2007 and 2008 as they claimed to save their lives the Tribunal does not accept that they would take the risk of returning there a number of times, in particular, the occasions they claimed they returned to see family (even if family members were ill).  The Tribunal has been provided with no information about the attitude of the Department to applicants being granted protection and returning to their country very soon after.  The whole purpose of being granted protection is to enable someone to remain in Australia so they do not have to return to their country where their life is in danger.

15. As for inaction in looking at countries for the purpose of seeking protection, the applicant said that it was not as though they had made no effort before the point in 2012 where the applicant discovered he would lose his employment.  They had investigated going to [Country 2] and [Country 3] but that did not work. In [Country 1], people felt safe and there was freedom to speak one’s own opinion.  In her response to this concern, the applicant’s wife said that they applied for a visa to go to [Country 3] in late 2011 or 2012 as part of a lottery system. It is clear from that response and also the applicant’s own evidence that it was not until 2011 that any attempt was made to find a place to go for safety and avoid having to return to danger in Egypt.  Given the pair fled Egypt to save their lives as early as 2007 or 2008, the Tribunal does not accept that, if they were genuinely in fear of harm in Egypt they would be content to remain temporarily in [Country 1] for a number of years after that and do nothing about finding a place of permanent sanctuary until 2011.

16. On this issue the representative at the hearing submitted that the applicant and his wife travelled to [Country 1] for their safety and when that option was no longer available that was when they tried other means.  The Tribunal acknowledges that the applicant and his wife would initially travel to another location temporarily for their own safety but does not accept they would be content to remain there (and subsequently return to Egypt a number of times) for some years before taking steps to find a place of permanent sanctuary.  In submissions of 8 September 2017, the representative stated that it was not until 2012 that circumstances were so severe that the applicants had to leave Egypt permanently when the country was in a period of instability.  The Tribunal rejects that submission because the tenor of the evidence of the applicant was that the family had to leave Egypt as early as 2007 and rejects the submission that the need to remain away from there permanently did not arise until some five years later in 2012.

    Documents

17. In assessing the credibility of both the applicant and his wife and their protection claims, the Tribunal has taken into consideration documents they have submitted to corroborate their claims.  As stated above, to the Department, the applicant submitted two letters from churches in Egypt making general assertions that they suffered harm.  To the first Tribunal, two further letters were submitted from churches in Egypt again asserting that they were and are at risk.[10]  Also submitted to the first Tribunal was a letter from a Coptic Church in Australia in which the writer asserts that he knows of the problems they had in Egypt as does the church in Egypt.[11] To this Tribunal another letter was submitted from a church in Egypt asserting that the family were harmed and need protection.[12] At the interview with the delegate, the representative stated that he had received a telephone call from a priest in Egypt saying that the family needed protection.  To the first Tribunal, the applicant submitted a letter from the Coptic Church in Australia stating that the applicant and his family were members of the church who helped with church activities or service.[13]  They submitted a letter from a relative of the applicant’s wife who lives in Australia again stating that the couple were involved in the local Coptic Church and were known in the local Coptic community.[14]  To the Tribunal, at the hearing, the representative submitted that the Coptic church did not easily provide supporting letters.[15] 

    [10] See the first Tribunal file at folios 92 – 93.

    [11] See the first Tribunal file at folio 106.

    [12] See the Tribunal file at folio 57.

    [13] See the first Tribunal file at folio 92.

    [14] See the first Tribunal file at folio 107.

    [15] The representative made a similar submission in his letter dated 8 September 2017, to the effect that the church does not issue such letters if claims cannot be verified or if the truth cannot be supported.

18. The Tribunal has carefully considered these general assertions made by the church in Australia and Egypt (including that related by the representative at the interview with the delegate).  Even if, as the representative claims, the church does not easily provide supporting letters, the assertions made by the church do not overcome the failure of the applicant to advance to the Department crucial and significant claims which form the crux of his and his family’s need for protection.  These assertions do not overcome the Tribunal’s concerns about the behaviour of the applicant and his wife from early 2007 which the Tribunal finds to be inconsistent with what it could reasonably expect of people in their claimed circumstances.

19. Apart from those documents issued by churches, to the Department, as stated above, the applicant submitted a report from police in Egypt in relation to the incident in 2012 when a cross was snatched from the applicant’s wife.  To the first Tribunal they submitted a letter containing a threat to the recipient to convert to Islam or die.[16]  Again, neither document demonstrates that the events which form the crux of the applicants’ need for protection actually took place.  The contents of these documents do not overcome the concerns that the Tribunal holds about the couple’s credibility which span much more than the subjects to which these documents relate.

    [16] See the first Tribunal file at folio at folio 93.

20. Finally, to the first Tribunal, the applicants submitted a letter dated [in] May 2014 from a human rights group in Egypt containing much of what they now rely on as their protection claims.[17]  The document is signed by X who, according to the document, was approached by the applicant’s wife in 2012 and to whom she reported the contents of the document. In addition, according to this document, a committee in the organisation investigated what the applicant’s wife related to X and the committee found that to be true.  To the first Tribunal,  the applicant gave a similar account about the production of that document. In its decision, the first Tribunal records that the document was provided to DFAT who made contact with X and who told DFAT that he was the author of the document.[18] DFAT, understandably, added that it could not confirm the veracity of the contents of the document, having confirmed only that the document was authored by X.

    [17] See the first Tribunal file at folio at folios 98 – 105.

    [18] See the first Tribunal file at folio 160.

21. In submissions dated 18 August, 8 September and 2 November 2017 the representative claimed that this document was ‘verified’ by DFAT and found to be genuine.  The Tribunal has considered those submissions, but, what DFAT found to be genuine, was that the document was written by X who was from that particular human rights group.  Much of what the document records, according to the document itself, is what the applicant’s wife is said to have related to X albeit that a committee from the human rights group is said to have investigated that information and found it to be true.  The Tribunal has to balance the contents of this document against what is the inexplicable failure of the applicant to advance to the Department what makes up the contents of this document.  The Tribunal has to balance the contents of the document against its concerns over the applicant’s willingness to attend his employment from early 2007 when claiming to be in hiding from the people he fears; the willingness of the applicant and his wife to return to Egypt a number of times having fled to save their lives and their inaction after first leaving Egypt to seek a place of permanent sanctuary where they could live without risk of being sent back to Egypt where they claim to be in danger.

1. The Tribunal’s concerns about the credibility of the applicant and his wife are not outweighed by the contents of the document from the human rights organisation even when considered together with the contents of the other documents submitted to corroborate their claims.  These documents do not overcome or resolve the Tribunal’s concerns and those concerns remain.  The Tribunal does not believe that if the applicant and his wife were harmed in Egypt as these documents assert the applicant would fail to advance crucial claims to the Department and the couple would behave in the manner they did from early 2007. 

   Conclusions on credibility

2. At the beginning of the hearing, the Tribunal advised the applicant and his wife that, although the delegate and the first Tribunal may have found certain aspects of their evidence credible, the Tribunal had to decide for itself whether or not they were telling the truth and   this was a purpose of the questions it would be asking them.  Considered cumulatively, the concerns the Tribunal holds about the credibility of the applicant lead the Tribunal to find that he is not a witness of truth.  The applicant’s wife, to the first Tribunal and to this Tribunal, has purported to corroborate the applicant’s evidence through giving an account of suffering harm in Egypt, in particular, the events that followed from her assisting a Christian girl.

3. As discussed above, the Tribunal holds concerns about the applicant’s wife’s willingness to return to Egypt a number of times after first fleeing from that country to save the lives of her and child as well as her inaction over a lengthy period to find a place of permanent sanctuary away from [Country 1] where the family could only remain temporarily.  Her evidence about events in Egypt does not overcome these specific concerns nor does it overcome the concerns the Tribunal holds about the omission of evidence to the Department of the events which form the crux of the family’s claimed need for protection.  Accordingly, the Tribunal also finds that the applicant’s wife is not a witness of truth.

4. Because they are not witnesses of truth, the Tribunal finds that the account of events on which their protection claims are based is false.  Accordingly, the Tribunal disbelieves all claims made to the Department, the first Tribunal and to this Tribunal, as narrated above, about the applicants suffering harm in Egypt because of their religion, be that discrimination, harassment, threats, attacks or attempted kidnapping.  The Tribunal finds all of that evidence to be false.  The Tribunal also finds to be false claims they have made about serving their church in Egypt given that this was inextricably linked to the harm they claim to have suffered particularly from early 2007 that harm relating to the applicant’s wife helping a Christian girl.  The Tribunal discussed earlier in this decision the documents submitted by the applicants to corroborate their evidence. The Tribunal has given reasons above why those documents do not overcome the Tribunal’s credibility concerns.  Accordingly, the Tribunal does not give evidentiary weight to those documents.[19]

   [19] For the sake of completeness, the Tribunal records that the Department issued a certificate pursuant to s.438(1)(b) of the Act in relation to documents relating to applications made by the applicant and his wife for visas to enter [Country 3] in early 2012. There was no need for the Tribunal to disclose this information to the applicants because they both told the Tribunal that they applied for visas to enter [Country 3] at approximately the same time. The information the subject of the certificate was merely confirmatory of the evidence of the applicant and his wife. The fact that they applied for those visas is not adverse to their claims. What the Tribunal finds adverse to their credibility is their own evidence that they saw fit to stay temporarily in [Country 3] for a number of years before seeking permanent sanctuary. On that basis, the information the subject of the certificate is not relevant to the determination of this review.

5. The Tribunal finds that while it accepts that the applicant, his wife and child are Coptic Christians from Cairo it has no credible evidence that at any time in their lives in Egypt (including before they married) they ever suffered harm in any form.  There is no credible evidence before the Tribunal as to why the applicants left Egypt and why they do not wish to return there. There is no credible evidence before the Tribunal that anyone in Egypt seeks to harm them.  The Tribunal also finds that while it accepts they are Christians who did and will attend a Christian church it has no other credible evidence before it that they will perform any other service for the church.  The Tribunal acknowledges the letters produced from the Coptic church in Australia and a relative of the applicant’s wife to the effect that they are involved with church activities here but that does not amount to credible evidence that they will undertake activities for the church in Egypt. The Tribunal remains of the view that it has no credible evidence about this beyond being willing to find that as Christians they will attend a church in Cairo.  The Tribunal now turns to an assessment of the risk of the applicants suffering serious harm in Egypt.

   Assessment of whether the applicants hold a well-founded fear of persecution based on a convention ground

   Country Information

6. There are approximately 7 to 9 million Coptic Christians in Egypt.[20] Egypt has 2, 869 churches.[21] Following the 2011 revolution, there was a decline in law and order leading to an increase in violent crime, civil unrest and terrorist attacks.[22] This breakdown in law and order contributed to a significant growth in communal violence.[23]  Muslim Brotherhood members and supporters attacked Christian targets across the country, in churches, schools and private property.[24] Large scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013.[25]

   [20] See DFAT Country Information Report Egypt (‘Country Report’) 19 May 2017 at 2.6 – 2.7 where DFAT states that the population of Egypt is 94.6 million and Coptic Christians make up between 8 – 10 per cent of that population.  In submissions of August 2017, representative refers to this report.

   [21] See ‘Egypt’s PM forms committee to legalise the status of churches’ Ahram Online 30 January 2017 CXC 904066926.

   [22] See Country Report 2.27.

   [23] See Country Report 3.20.

   [24] See Country Report 3.20.

   [25] See Country Report 3.20.

7. In this anti-Christian violence, a government report found that 29 people died, 52 churches were razed, another 12 damaged and numerous Christian owned properties were destroyed.[26] The perpetrators of the attacks on churches in Upper Egypt were prosecuted and received prison sentences.[27] In 2015 the military had completed the rebuilding of around one third of the churches destroyed in the previous violence.[28] Incidents of communal violence continued in 2016, many of these taking place in Minya (a province of Upper Egypt), including physical assaults of Christians and looting and destruction of Christian property.[29] Christian families fled a northern Sinai town after 7 Coptic Christians were reportedly killed by Islamic state affiliated militants in early 2017.[30]  Egyptian leaders are sensitive to the impact of communal violence and the president has repeatedly denounced attempts to create rifts among Egyptians, calling for national unity.[31]

   [26] See Country Report 3.21.

   [27] See Country Report 3.21.

   [28] See Country Report 3.21.

   [29] See Country Report 3.22.  At 3.19 DFAT states that the majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt, the province of Minya being particularly notable in this respect.

   [30] See Country Report 3.22.

   [31] See Country Report 3.22.

8. DFAT assesses risk for Christians in community violence in the following terms:

   “DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.”[32]

   [32] See Country Report 3.24.

9. On this subject, DFAT also states that, particularly in poorer and rural areas, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community level violence.[33]  Most of these incidents take the form of vandalism and destruction of property, high profile incidents in which people are killed or churches attacked not being frequent.[34]  However, most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity.[35] In terms of security, the Sisi government’s strong emphasis on internal security has largely restored general law and order throughout most of Egypt.[36]  Terrorist attacks since then primarily target security personnel and facilities.[37]  The government is also engaged in a military conflict with Islamic State affiliated militant Islamists in North Sinai province.[38] 

   [33] See Country Report 3.18.

   [34] See Country Report 3.18.

   [35] See Country Report 3.18.

   [36] See Country Report 2.27.

   [37] See Country Report 2.29.

   [38] See Country Report 2.28.

10. Since December 2016 the Islamic State terrorist organisation has claimed responsibility for a number of major attacks targeting Coptic Christian churches.[39]  DFAT refers to an attack on a church service in Cairo in December 2016 (killing 29 and injuring 49); the release of a video by a group calling itself ‘IS Egypt’ in February 2017 calling for the targeting of Coptic Christians and two attacks on Palm Sunday church services in April 2017 in Tanta (killing 27 and injuring over 70) and Alexandria (killing at least 16 and injuring 66).[40] As stated above, in addition to those attacks, around 154 Christian families fled a northern Sinai town in early 2017 after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants.[41] The church attacks were strongly condemned by Moslem figures.[42] In response to the attacks on Palm Sunday the president declared a nationwide state of emergency through which detentions and arrests are likely to increase.[43] The president also proposed establishing a body to combat terrorism and extremism with new powers for police and intelligence investigators and fast tracking of terrorism cases through the court system.[44]  Christians regarded the government’s restoration of law and order as a cause for relief and strongly supported the Sisi presidency, the president showing support for Christians.[45]

    [39] See Country Report 2.30.

    [40] See Country Report 2.30.

    [41] See Country Report 2.30.

    [42] See Country report 2.30 referring to condemnation by the Grand Imam of al-Azhar and a faction of the Muslim Brotherhood.

    [43] Country Report 2.31.

    [44] See Country Report 2.31.

    [45] See Country Report 3.32 where DFAT also states: “Sisi attended the main Coptic Christmas Eve mass in January 2015, the first time a serving Egyptian leader had done so, and attended again in January 2016. Sisi also called personally on Pope Tawadros to express his condolences following the murders of 21 Egyptian Copts in Libya in February 2015. Following the December 2016 church bombing in Cairo, Sisi declared three days of national mourning, attended the funeral for victims and ordered the Armed Forces to repair quickly the damaged church. As noted in ‘Security Situation’, following the twin Palm Sunday bombings, Sisi declared a nation-wide state of emergency.”

11. With respect to discrimination for Christians overall, DFAT states:

    “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.”[46]

    Inferences from country information

    [46] See Country Report 3.33.  See also Country Report 3.17 where DFAT states that Christians are subject to official discrimination in relation to the building and restoration of their places of worship as they continue to face restrictions in doing so that do not apply to Muslims.

12. From the country information, the Tribunal infers that the risk of the applicants suffering serious harm in Egypt because they are Coptic Christians is remote.  While there is the risk of discrimination for being Christian, the applicants will return to live in Cairo where, according to country information people work, live and socialise together without concern about their religious identities and which should reduce the risk of discrimination.  The Tribunal does not have credible evidence that these applicants suffered discrimination and on these grounds infers that the risk of them suffering serious harm due to discrimination is remote.  The Tribunal infers from the country information that communal violence between Christians and others is occasional, more likely in Upper Egypt (not Cairo) and mostly resulting in damage to property as opposed to harm to people.  While there have been recent attacks by Islamic State, they appear to be isolated and random.  When those attacks including the numbers of people harmed in them are considered in the context of the population of Coptic Christians in Egypt and also taking into account the action taken by the government in response, the Tribunal infers that the risk of the applicants suffering serious harm in Cairo due to violence against Christians is remote.

13. The Tribunal discussed this country information and the inferences the Tribunal draws from it with the applicant and his wife at the hearing.  In his comments in response, the applicant asked how the source of country information used by the Tribunal managed to report on Christians in Egypt.  The Tribunal notes that the DFAT Country Report on which it relies is based on numerous sources that include well-known human rights organisations.  In that sense, the Country Report is a reliable and up-to-date source of country information on which to assess the risk of the applicants suffering serious harm in Egypt.  The applicant also asked the Tribunal to consider that he was specifically targeted in Egypt. For the reasons given above, the Tribunal does not believe that the applicant, his wife and child were ever targeted and harmed in Egypt.

14. In her response to the Tribunal, the applicant’s wife made broad assertions about the Egyptian leadership failing to protect Christians; harm against Christians increasing and the problem being groups not the government.  The Tribunal has considered those assertions but prefers the country information set out earlier in this decision as to the most accurate and up-to-date assessment of the risk of harm for Coptic Christians in Egypt.  The applicant’s wife also, like the applicant, made reference to suffering harm in Egypt, but, for the reasons given above, the Tribunal does not believe those claims.

15. Throughout the course of the determination of the applications for protection made by the applicants, in their evidence to the Department, to the first Tribunal and also to this Tribunal, the applicant and his wife have made assertions about the treatment of Christians in Egypt and what they perceive as the risk of Christians being harmed in Egypt.  The Tribunal has taken those assertions into account but, as stated above, the Tribunal prefers independent country information set out earlier in this decision as conveying the most accurate assessment of the position for Coptic Christians in Egypt.  The Tribunal is not persuaded to depart from that country information by the comments made by the applicant and his wife at the hearing and these assertions they have made throughout the course of the determination of their applications for protection.

16. The Tribunal has also taken into consideration submissions made by the representative.[47]  The Tribunal has also taken into consideration country information provided by the representative.[48]  In these submissions, the representative very much refers to the same events in Egypt as those set out above in the country information.  The representative adds an attack on Christians in Minya in May 2017 and the stabbing of a Christian priest in October 2017 in Upper Egypt.  Those recent events only confirm the country information set out earlier in this decision about the prevalence of attacks on Christians in Upper Egypt where these applicants will not live.

    [47] These submissions were made by the representative in letters dated 2 November 2017, 8 September 2017, 18 August 2017 and at the Tribunal hearing. 

    [48] This includes country information contained in the written submissions from the representative and also country information provided by the representative which appears on the Tribunal file at folios 36-56, 67 and 72-97. 

17. The representative and some of the sources of country information on which the representative relies more or less take a different view of these events and the inferences the Tribunal draws from them.  In essence, the representative and these sources assert that what has occurred demonstrates that the risk of the applicants suffering serious harm in Egypt for being Christians is not remote, but, a real chance.  The Tribunal has carefully considered these submissions, country information and assertions but the Tribunal is not persuaded to depart from the inferences it draws about the risk of the applicants suffering serious harm.  The Tribunal remains of the view that, notwithstanding the recent attacks, considered in the context of the Christian population together with the efforts made by the government to respond to those attacks, as Christians returning to live in Cairo, the risk of these applicants suffering serious harm is remote. 

18. The representative makes reference to earlier decisions of this Tribunal (differently constituted) in which the Tribunal found that the applicants in those cases had a well-founded fear of persecution based on their religion.  Some of these decisions were released before the country information relied on in this decision and were based, therefore, on country information this Tribunal considers to be out of date.  In some of these cases, the Tribunal believed the evidence of the applicants about suffering harm for being Christians in Egypt.  This may well have played a factor in the Tribunal’s assessment of the risk of those applicants suffering serious harm in Egypt.   The Tribunal can distinguish those cases from the case before this Tribunal given there is no credible evidence that the applicants in this case suffered harm in Egypt. 

19. Otherwise, the most the Tribunal can say about these decisions is that they record assessments of the risk of Christians suffering serious harm based on what are much the same events as those discussed in country information relied on in this decision.  Those differently constituted Tribunals have taken a different view about that level of risk.  The Tribunal has considered those assessments and the materials on which they are based but they do not persuade the Tribunal to depart from what it regards as the correct assessment of the risk of these applicants suffering serious harm in Egypt because they are Christians. For the reasons given, the Tribunal finds that risk is remote.

1. The representative referred to a passage from the DFAT Country Report about anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam.  However, the Tribunal notes that according to DFAT there is little evidence to suggest that these incidents occur as a regular phenomenon.  The Tribunal accordingly assesses the risk of the applicants suffering serious harm on this ground as remote.  The representative also referred to country information about the prevalence of corruption in Egypt and submitted that this meant that laws were enforced unfairly against minorities. This was also related to claims the representative made about Christians suffering discrimination in Egypt.  Based on the country information set out earlier in this decision, the Tribunal is willing to accept the risk of the applicants suffering discrimination because they are Christians but there is no credible evidence before the Tribunal that this happened to them in the past.  The Tribunal is not satisfied that whatever risk of discrimination exists equates with a real chance of these applicants suffering serious harm.

2. The Tribunal has also taken into consideration country information before the first Tribunal as at the date of its decision dated 19 February 2015.  In this respect, the Tribunal is referring to country information considered by the first Tribunal, country information submitted to it and the Department by the representative, assertions about the treatment of Christians in Egypt made in documents submitted by or on behalf of the applicants, mainly in letters from churches in Egypt and in the letter from the human rights organisation discussed earlier in this decision.  Given that all of this information predates the decision of the first Tribunal, this Tribunal considers that it is out of date and the Tribunal prefers its more recent source of country information issued in May 2017.  The Tribunal has considered the assertions made in the letter dated [in] July 2017 from a priest in a church in Egypt who broadly asserts persecution of Coptic Christians there.  That broad assertion does not persuade the Tribunal to depart from the more detailed country information set out earlier in this decision.

3. For the reasons given above, the Tribunal finds that the inferences it draws from country information are correct and the risk of the applicants suffering serious harm in Egypt is remote.  The Tribunal finds that there is not a real chance that the applicants will suffer serious harm and, therefore, they do not hold a well-founded fear of persecution based on any convention ground.

   Complementary protection

4. With respect to the complementary protection criterion, the Tribunal finds that the risk of the applicants suffering significant harm in Egypt is remote, for the same reasons that it finds that the risk of them suffering serious harm is remote.  Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, Egypt, there is a real risk that they will suffer significant harm.

   CONCLUSIONS

5. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants protection visas.

   Paul Millar
   Member