1701668 (Refugee)

1701668 (Refugee) [2017] AATA 772 (18 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701668
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Giles Short
DATE:18 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 18 April 2017 at 8:58am
CATCHWORDS
Refugee – Protection visa – Cancellation – Egypt – Religion – Christian – Charged with converting Muslims – Non-compliance with the Act – Incorrect information in protection visa application – Best interests of children

LEGISLATION
Migration Act 1958, ss 101(b), 102(b), 107, 109(1)
Migration Regulations 1994, Schedule 2, r 2.41

CASES

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

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
INTRODUCTION

[The applicant] is a citizen of Egypt. He first came to Australia as a [temporary entrant] in November 2005. He returned to Egypt in January 2009 in order to get married. He came back to Australia in March 2009 and he applied for a protection visa [in] December 2010. In that application he said that when his wife and [Child 1] had returned to Egypt in July 2010 his wife had been extensively interrogated about his activities overseas and in Egypt. He said that the Egyptian intelligence had advised his wife that she would be prevented from travelling until he personally returned to Egypt. He said that he now feared returning to Egypt where the Egyptian intelligence were waiting to interrogate him. He was granted a protection visa [in] October 2011 and he left Australia [in] December 2011, returning to Egypt. He came back to Australia [in] March 2012.
In a ‘Notice of Intention to Consider Cancellation’ dated [in] May 2016 a delegate of the Minister for Immigration informed [the applicant] that he considered that [the applicant] had not complied with paragraph 101(b) of the Migration Act 1958 in that he had provided incorrect information in his application form for a protection visa. The notice referred to the fact that he had claimed that he feared returning to Egypt where the Egyptian intelligence were waiting to interrogate him but that the fact that he had returned to Egypt less than two months after he had been granted his protection visa suggested that he had not feared returning to Egypt and that the Egyptian intelligence had not been waiting to interrogate him. The notice also suggested that [the applicant] had not complied with paragraph 102(b) of the Migration Act in that he had said in his outgoing passenger card in December 2011 that the country where he would spend most time abroad was [Country 1] and he had said in his incoming passenger card in March 2012 that the country where he had spent most time abroad had been [Country 2].
[In] January 2017 a delegate of the Minister for Immigration proceeded to cancel [the applicant]’s visa on the basis that he had not complied with paragraphs 101(b) and 102(b) of the Migration Act in that he had provided incorrect information in his application form for a protection visa and he had given incorrect answers in his outgoing and incoming passenger cards. On 31 January 2017 [the applicant] applied to the Tribunal for review of the decision. A summary of the relevant law is set out at Attachment A. The issues in the review are whether there was non-compliance in the way described in the notice sent to [the applicant] and, if so, whether the Tribunal should exercise the discretion to cancel the visa.
As a preliminary matter I note that there is a certificate made by a delegate of the Minister under section 375A of the Migration Act at folio 57 of the Department’s file [number]. That section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. The certificate relates to folios 20 and 52 of that file, the disclosure of which it states would be contrary to the public interest because information in these folios might allow the identity of an informant to be ascertained and this might adversely affect the informant’s safety. There is also a certificate made by a delegate of the Minister under section 375A of the Migration Act at folio 151 of the Department’s file [number]. That certificate relates to the reverse of folio 2 and to folio 31 of that file, the disclosure of which it states would be contrary to the public interest because the information contained in both folios could identify an informant and could possibly result in her being harmed.
Two observations may be made about these certificates. First, section 375A appears in Part 5 of the Migration Act which, in accordance with subsection 336N(1) of the Act, applies in relation to the review by the Tribunal of ‘Part 5-reviewable decisions’ as defined in section 338. In accordance with paragraph 338(1)(b) such decisions do not include ‘Part 7-reviewable decisions’ (as defined in section 411) and the decision under review in the present case is a ‘Part 7-reviewable decision’, being a decision to cancel a protection visa (see paragraph 411(1)(d) of the Act). There is no equivalent of section 375A in Part 7 of the Act. It follows that the certificates are invalid and of no effect in relation to this review. Secondly, [the applicant] knew that the source to whom the delegate had referred in his email message to [the applicant] dated [in] June 2016 was [the applicant]’s wife because [the applicant] mentioned what she had said at the interview in relation to her application for a spouse visa in his response on the same day. There is nothing in the evidence before the Tribunal to indicate any basis for the claim that there was a risk that, if [the applicant] knew that his wife was the ‘informant’ in question, this could result in her being harmed, and I have given this claim no weight whatsoever in making my decision on [the applicant]’s application.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the section 107 notice?
[The applicant]’s application for a protection visa
[The applicant] comes from [City 1] in Upper Egypt. In his application for a protection visa he said that he had completed a [tertiary course] [between] [years] and that he had been employed as [occupation] by [workplace] in [City 1] from 1994 to November 2005. In a statutory declaration accompanying his application [the applicant] said that he had been born into the Coptic Orthodox faith but that at the age of [age], in 1991, he had become an Evangelical Christian. He said that he had involved himself in activities including preaching and the collection and distribution of donations and that he and his fellow students and brothers in faith had encountered a lot of opposition from Muslim students. He said that they had often been physically attacked by those who had objected to their preaching. He said that four Muslim students had converted to Christianity through their preaching and had secretly attended their church.
[The applicant] said that after he had completed his studies he had continued to preach and to engage in the collection and distribution of food gifts to the poor. He said that between 1993 and November 2005 he had suffered physical attacks on three separate occasions whilst he had been undertaking preaching activities and on two of these occasions he had suffered serious facial and bodily injuries which had required medical treatment. He said that what he had considered to be the most serious attack had occurred in June 2005 when an attacker had been waiting outside his apartment and had attempted to stab him with a knife. He said that he had managed to fend off the attacker but after this incident he had not left his apartment for ten days and he had completely stopped attending church or engaging in preaching. He said that he had had no choice following these threats but to apply for a visa and flee Egypt. He referred to the fact that he had returned to Egypt to get married in January 2009 but he said that during this visit he had refrained from any preaching activities for fear that he might once again be targeted by radical Muslims. He said that he had kept a low profile and he had only visited his church on two occasions.
[The applicant] said that his wife had been granted a dependent [temporary] visa and had come to Australia in June 2009 and that [Child 1] had been born in Australia in [year]. He said that his wife and [Child 1] had returned to Egypt in July 2010 to visit his wife’s gravely ill mother and as referred to above he said that his wife had been extensively interrogated about his activities overseas and in Egypt. He said that the Egyptian intelligence had advised his wife that she would be prevented from travelling until he personally returned to Egypt. He said that he now feared returning to Egypt where the Egyptian intelligence were waiting to interrogate him. He said that in Australia he was attending the [name] Church and that he continued to preach the Gospel. He said that he feared that he would be prevented from proselytising if he returned to Egypt and that the Egyptian authorities had not stopped attacks on Christians. He produced a letter on the letterhead of the Protestant Churches of Egypt (together with a translation) saying that he had been the subject of ongoing persecution by the Muslim Brothers because of his preaching activities.
[In] June and [in] July 2011 [the applicant]’s then representatives sent to the Department copies of various official documents (together with translations) relating to [the applicant]’s wife having been questioned at Cairo Airport. The documents suggested that [the applicant] was ‘[details deleted]’. [The applicant]’s representatives did not explain how these documents had been obtained.
[The applicant] was interviewed by the primary decision-maker in relation to his application for a protection visa [in] October 2011. He said that he had spoken with his wife and [Child 1] on the night before the interview. He said that they were living in [City 1] and that they were scared and they were not going out of the house. He confirmed that they had returned to Egypt because his wife’s mother had been ill and had been going to have an operation. He said that after the Revolution there were now a lot of Salafists in [City 1]. He said that at the time of Hosni Mubarak there had been many fanatics and now there was a high chance that they would govern Egypt. He said that his wife did not go out a lot and up until now his [Child 1] had not been baptised. He said that life there was getting worse and worse.
[The applicant] confirmed that he claimed that he had converted to the Evangelical Church when he had been studying. He said that they gave better service to the followers and they knew the Bible better. He said that he had learned a lot from them. He said that his wife belonged to the same church and that they were also related. He confirmed that he claimed that he had been physically attacked on three occasions. He said that in one of these attacks he had suffered [injuries]. He said that the last attack had been in June 2005 and he had suffered an injury [when] a Muslim had tried to stab him. He said that there had been a single attacker. He said that after this he had stayed at home and he had felt that he had had to travel otherwise he might have been killed. He said that he had not had any problems when he had returned to Egypt to get married in 2009.
[The applicant] said that the originals of the documents which he had produced were in court but his solicitor had picked up a copy. He confirmed that he claimed that these were copies of genuine police records. He said that they had appealed to a higher court but the hearing had been adjourned. He said that his wife had not had any problems with the authorities or the police apart from being questioned at the airport. He said that his situation in Egypt had been comfortable, better than here, and he could have had a better life there than here. He confirmed that he claimed that he had been accused of having converted [number] people from Islam to Christianity and he said that this had been while he had been at university. He said that he was really scared about his wife and [Child 1] in Egypt.
[The applicant]’s response to the Notice of Intention to Consider Cancellation
In a response dated [in] May 2016 [the applicant] said that his wife had returned to Egypt in July 2010 after the birth of [Child 1] in [year] ‘due to additional responsibilities and care need for the young born child’. He said that he had applied for his protection visa in 2010 ‘on the ground that I am Coptic Christian’ although he also referred to his involvement in converting Muslims to Christianity. He said that after the Revolution in January 2011 there had been a wave of killing and kidnapping people in Upper Egypt and his wife had called to tell him that the situation was very risky as she had received a few threats and there were no police or security and no safe place to go. He said that he had booked to travel to Egypt with a stopover in [Country 1] and that he had said in his outgoing passenger card that the country where he would spend most time abroad was [Country 1] because he had feared to say that he had been on his way to Egypt.
[The applicant] said that when he had arrived in Cairo he had been held by the authorities but after a few days they had allowed him to visit his family. He said that after a few months they had asked him for information about Christian television channels broadcasting from [Country 2]. He said that he had travelled to [Country 2] where he had pretended that he had been killed by Hezbollah. He said that the restrictions on his wife leaving Egypt had been removed because the authorities in Egypt had thought that he was dead. He said that he had stated in his incoming passenger card in March 2012 that the country where he had spent most time abroad had been [Country 2] because he had been scared to mention anything about Egypt. He said that he had been scared that the authorities in Egypt would discover that he had misled them. He said that if he had been planning to mislead the Australian authorities he would not have booked a ticket to Egypt from Australia but would have travelled to one of those countries for which he did not need a visa like [country] and travelled to Egypt from there.
[The applicant] said that he had submitted a letter to the Department in 2011 saying that he was suffering from depression when he had first applied for his wife to join him in Australia. He produced a statutory declaration from [a person] who said that he had shared a house with him between 2006 and September 2012 and that he had seen that [the applicant] had been concerned for the safety of his family in Egypt in 2011. [The applicant] also produced two letters from a doctor indicating that his [Child 2] was suffering from [a health condition]. He said that his [Child 1] was enrolled in school in Australia and he also produced a birth certificate for his [Child 2], born in Australia in [year]. He also produced evidence that he was employed as a [occupation] and a letter dated [in] May 2016 from [Church 1] saying that he was a member of that church and that he helped with the church mission in evangelism. He said that he had recently bought a house. He also referred to the fact that his mother-in-law was in Australia and had applied for a protection visa claiming that his wife’s father and [sibling] were both in hiding.
[In] June 2016 the delegate sent an email message to [the applicant] saying that the Department had information from a credible source that he had travelled to [Country 2] because his lawyer had told him to do so for his migration case. [The applicant] responded on the same day indicating that he was aware that his wife had said this at her interview in relation to her application for a spouse visa but that this had been because she had been scared to mention anything about the threats he had received. He said that he had not been in touch with the lawyer who had assisted him to obtain a protection visa until he had approached him to help him to obtain a spouse visa for his wife. He said that there would have been no reason for him to travel to [Country 2] ‘unless the trip and to stay there for a week has some facts behind it’. [The applicant] also produced an Emergency Department Discharge Summary indicating that his wife had presented late [in] June 2016 with a likely [medical condition] and letters from her doctor confirming this and referring her to a [specialist].
In a letter to [the applicant] in connection with an International Treaties Obligations Assessment (ITOA) dated [in] November 2016 the officer conducting the ITOA referred to the fact that in his application for a protection visa [the applicant] had claimed to have converted to the Evangelical Church at the age of [age] but that his wife had said that they had got married at the Church [name] (a Coptic Christian church in [City 1]) in 2009 and Bishop [name] of the Coptic Orthodox Church in [City 2 in Australia] had emailed the Department in April 2013 enquiring about progress with the application for a spouse visa made by [the applicant]’s wife, identifying [the applicant] as one of his parishioners. The officer also referred to the fact that in his application for a protection visa [the applicant] had claimed that his wife had returned to Egypt in July 2010 to visit his wife’s gravely ill mother but that his wife had said when she had been interviewed in relation to her application for a spouse visa [in] June 2012 that she had returned to Egypt because she had given birth to [Child 1] in [year], it had not been easy for her, her health had not been good and she had not been able to handle this alone so she had returned to Egypt so that her family could support her.
In a response dated [in] December 2016 [the applicant] said that he had in fact entered [Country 2] [in] March 2012 and left [in] March 2012 and he produced a copy of his Egyptian passport containing stamps confirming this. He said that many people who belonged to the Evangelical Church in Egypt still maintained their Orthodox background and could get married in the Orthodox Church. He said that he attended the Coptic Orthodox Church in [another state in Australia] as well as [Church 1] and that he had the support of both churches but he said that none of the Egyptian churches in [City 2] were willing to provide him with any letter of support ‘after they have been instructed not to issue any letters to the Department of Immigration and Border Protection due to the many problems caused by such letters’. He said that he had had few contacts with the [name] Church in [City 3 in Australia] after he had moved to [City 2] in September 2012 so a request from him to obtain a letter of support from that church would be unrealistic. With regard to his wife’s reasons for travelling to Egypt in July 2010 he said that he confirmed that she had returned to Egypt to visit her gravely ill mother and that what she had said at the interview in relation to her spouse visa application had come as a complete surprise to him. However he said subsequently that she had gone back to Egypt in July 2010 after she had started to have depression and a feeling of isolation after she had started to understand the problem for him.

With regard to his decision to return to Egypt in December 2011 [the applicant] said that he had felt compelled by guilt to return to help his wife. He said that he had arrived in Egypt [in] December 2011 and he had left [in] March 2012. He said that if his claims had not been genuine he would not have allowed his wife to go back to Egypt. He said that when he had been granted a protection visa he and his wife had already been separated for 15 months and he said that he had begun the process of sponsoring her application for a partner visa in April 2012, after he had come back to Australia. [The applicant] repeated that he had been taken by the authorities when he had arrived at the airport in Cairo in December 2011 but he did not cast any further light on how long he claimed he had been detained or what had happened. He said that he had lived in a house belonging to [a] Church in Cairo for the period for which he had stayed in Egypt. [The applicant] suggested that rather than visiting Egypt he could simply have applied to sponsor his wife at that time and he also referred to the fact that he had not been back to Egypt since then. With regard to the situation for Coptic Christians in Egypt he referred to the terrorist attack on St Peter and St Paul’s Church in Cairo on 11 December 2016 in which 28 people were killed.
[In] December 2016 [the applicant] forwarded to the Department a copy of a submission to the Tribunal made by a registered [migration agent] [in] November 2016 in relation to a different case. [The migration agent] submitted that Muslim people did not accept Christians and that the current regime in Egypt was unable to provide proper security for Christians. [In] December 2016 [the applicant] produced a translation of an article in Arabic which he had previously submitted which said that the Orthodox Church prohibited Orthodox men from marrying women from other denominations but that the Evangelical Church did not prohibit marriages between different denominations. [In] January 2017 the officer conducting the ITOA found that Australia did not have non-refoulement obligations to [the applicant].
In a submission sent to the Tribunal on 3 April 2017, [the migration agent], whom [the applicant] had now retained as his representative, referred to what [the applicant] has said in his response to the section 107 notice. He submitted that in the current climate in Egypt Christians and females in particular were targeted and that there was not a week in Egypt without incidents involving Christian females in different age groups. He submitted that [the applicant]’s wife was pregnant again and that the children had a very negative attitude towards Egypt based on what they had listened to and watched on the internet. He submitted that they hated Muslims and that they would not be able to hide this if they returned to Egypt. He also submitted that they had never practised the Arabic language and they would be easily identified as children who had built ‘a habit of western culture in their language, action and even behaviour’.
[The migration agent] submitted that the children would be required to follow Islamic culture, that all schools in Egypt (even international schools) taught the Qur’an and the Arabic language, that there was a risk of the children being kidnapped for ransom, that people would think it very easy to attract them to Islam, that it would be a simple issue for anyone to accuse their parents of having planted inside them a hatred of Islam, that one of them (he did not identify which) suffered from [health condition], that the medical system and treatment in Egypt was ‘not the best’ and that the need to protect her children in Egypt could affect a pregnant mother like [the applicant]’s wife and her unborn child.
Discussion of the issues
At the hearing before me on 7 April 2017 [the applicant] produced documents in relation to his wife’s pregnancy, media reports in Arabic (together with translations) relating to the situation of Copts in Egypt including reports of the kidnapping of Copts for ransom and the kidnapping and disappearance of children, a letter confirming that [Child 1] was enrolled at [a] School in [Suburb 1] and photographs of her at the school. I asked [the applicant] if anyone had helped him to prepare his response to the section 107 notice. He said that no one had helped him. I put to him that there were passages in the response which talked about him in the third person. [The applicant] denied again that anyone had helped him. He said that everything in the response was true and correct. I noted that he had also prepared a response in December 2016 to a letter that had been sent to him in relation to an International Treaties Obligations Assessment. [The applicant] said that everything in that letter was true and correct as well. He confirmed that his wife was pregnant again and he said that the baby was due in around the middle of [month].
[The applicant] confirmed that his mother-in-law was living with him and his family and that she had applied for a protection visa. He said that her application had been refused by the Tribunal but she was going to apply to the Federal Circuit Court. I noted that he had said that his wife’s father and [sibling] were in hiding in Egypt and I asked him if any problems which his wife’s family were having were relevant to his situation if he returned to Egypt. [The applicant] said that in Egypt normally they attacked women. He said that because of the problems which his in-laws were having, if his wife went back there would be a big problem for her as a woman and for the children, in addition to his problems. He said that his wife’s father and [sibling] were in hiding in a place with a priest inside (not a church) in [City 1] and that this place was part of the Coptic Orthodox Church.
I explained to [the applicant] with regard to the situation of his wife and children that his [Child 3] was an Australian citizen and therefore had the right to remain in Australia. I noted that I understood that his wife’s visa and the visas of his two older children had been cancelled in consequence of the cancellation of his visa and that they had applied to the Tribunal for review of that decision. I explained to him that the sorts of matters which he was raising were ones which they could raise through making an application for a protection visa. I noted that because they had not applied for protection visas previously they could apply to the Department for protection visas if their visas were cancelled. I explained to him that this meant that I did not have to consider what might happen to his wife and children if they returned to Egypt. I put to him that he, on the other hand, had previously applied for a protection visa - this was the visa which had been cancelled - so I did have to consider his situation if he went back to Egypt. [The applicant] said that he understood. I asked him again if anything that had happened to his wife’s family would affect his situation if he went back by himself to Egypt. [The applicant] said that he would be targeted both because of his own situation and his in-laws’ situation.
[The applicant] confirmed that he had [siblings] who were still living in [City 1]. He confirmed that although he had converted to the Evangelical Church in Egypt at the age of [age] he had still attended the Coptic Orthodox Church as well. He said that his whole family were Coptic Orthodox so he had attended both. He said that it was not really a conversion because they worshipped the same God but the method of following the church was different in the Evangelical Church. He said that his wife belonged to the Coptic Orthodox Church and that his children had been baptised in the Coptic Orthodox Church, the youngest here and the other two in Egypt. He confirmed that [Child 1] was enrolled at [a] School in [Suburb 1] and he said that she was in Grade [number]. He confirmed that he worked full-time as a [occupation] and he said that he sometimes had to work on Sundays although he asked for Sundays off and he sometimes swapped shifts with other [workers].
[The applicant] said that in Australia he had attended prayers at the Coptic Orthodox Church in [City 3] and he had listened to the teachings at the Evangelical Church. He said that when he had arrived in [City 3] he had lived with his [relatives] who had all been Coptic Orthodox so he had gone with them to their church. He said that after he had moved to [City 2] he had attended [a] Coptic Orthodox Church in [Suburb 2] and [Church 1]. He said that he took the family to the church in [Suburb 2] to attend prayers in the morning and then he went to the lessons and the teachings in the other church in the afternoon. He said that now because his children spoke English he was taking them to a church called [Church 2]. I referred to the fact that the letter from [Church 1] which he had produced to the Department said that he had helped with the church mission in evangelism. [The applicant] said that along with one of the priests and another person he had distributed pamphlets once a week to people at [Suburb 1] Station. He said that he was no longer involved with [Church 1]. He said that [Church 2] also engaged in evangelism but he had not done any work with them as yet.
I referred to the fact that [the applicant] had said in the statutory declaration accompanying his application for a protection visa that he had been attacked on three occasions between 1993 and 2005. [The applicant] said that all these occasions had been in [City 1]. He said that on two of the occasions he had been coming out of the church with other people after a service had finished and they had started to beat them and he had been [injured]. He said that he had gone to the hospital and he had had to have [stitches]. He said that on the third occasion there had been someone waiting for him outside his home who had stabbed him [with] a knife. He said that on this occasion [a relative] who was a doctor had treated him.
I referred to the fact that [the applicant] had returned to Egypt in January 2009 to get married and I asked him if he had had any problems on this visit. He said that when he had gone there he had changed his place of residence from time to time. He said that he had met a man who had been following him and who had looked at him in a very scary way, as if to say, ‘Where have you been all this time?’ He said that he had taken his wife and had moved from one place to another until he had left. He confirmed that his wedding had been at the Church [name] in [City 1]. He said that this had been two weeks after he had arrived in Egypt and he had only seen this person after that. He confirmed that he claimed that after the marriage he and his wife had moved around in Egypt. I put to him that his wife had told the Department that they had stayed together in his [sibling]’s apartment. [The applicant] denied this but he said that after the wedding they had gone to his [sibling]’s apartment. I put to him that when he had been interviewed in relation to his application for a protection visa he had said that he had not had any problems when he had gone back to Egypt in 2009. [The applicant] said that there had not been much trouble except that when he had seen this person he had been really worried that big problems would happen if this person knew where he was staying.
I referred to [the applicant]’s evidence that when he had returned to Egypt in December 2011 he had been held by the Egyptian authorities. [The applicant] said that he had been held for about [number] days, initially in a room at the airport and then at another place. He said that he had been asked about his activities as an evangelist in Egypt, converting people, and he had been beaten. He said that he had asked them not to harm his wife and [child]. He said that at the end they had said that if he wanted them to leave his wife and [child] alone they would give him some instructions, some things they wanted him to do for them. He said that at this time his wife and [child] had been living in [City 1]. He said that his father-in-law and his [sibling]-in-law had come to pick him up from the airport. He said that they had waited for a long time and they had been told that he had arrived but the airline staff did not know where he was. He said that his [sibling]-in-law had been studying in Cairo at the time and his father-in-law had stayed with him until they had heard what had happened to him. He said that when he had been released he had not gone to [City 1] because the authorities had asked him not to go there but to stay in Cairo. He said that he had stayed in a guest house belonging to the Evangelical Church in Cairo and his wife and [child] had come and stayed with him there.
[The applicant] confirmed that he claimed that the Egyptian authorities had asked him to go to [Country 2]. He said that he had gone to [City 4] and he had stayed in a hotel in the [name] area. He said that he had left his bag there and he had searched for a Coptic church. I put to him that in his response to the section 107 notice he had said that in [Country 2] he had gone straight to a Coptic Christian friend in [City 4]. [The applicant] said that it had been the priest in the church. I put to him that in his response to the notice he had said that he had talked to a priest as well but he had said that first he had gone to see this Coptic Christian friend. [The applicant] said that the priest had helped him and had introduced him to some people in [City 4]. He said that possibly he had said that it had been a friend or something. He said that this person had been a friend of the priest.
I put to [the applicant] that in his response to the notice he had said that he had talked to people involved with [Father A]. [The applicant] denied this. He said that the authorities had asked him to collect information about who the people were who worked with [Father A] and what their activities were. I put to him again that in his response he had said that he had talked to people involved with [Father A]. [The applicant] said that he had gone to the church and he had spoken to the priest in the church, telling him his situation. He said that the priest had helped him. I asked him if he had in fact talked to people involved with [Father A]. [The applicant] said that the priest to whom he had spoken had had contact with [Father A]. I put to him that it did not appear that his evidence at the hearing accorded with what he had said in his response to the section 107 notice which he had told me he had written himself. [The applicant] said that he had meant that the church had had a relation with [Father A] and possibly the people in the church had a relationship with him as well. He said that he had meant that the people who attended the church and the priest at the church had a relationship with [Father A].
I put to [the applicant] that, as we had discussed, he had said that he had gone and talked to a priest but this had been to seek advice. He had said that the priest had told him that it would be a sin if he killed himself. [The applicant] said that when he had left Egypt he had been thinking that if he died it would be much better for him and his family and the authorities would not continue to search for him. He said that when he had arrived in [Country 2] he had searched for the Coptic church. He said that he had told the priest there the whole situation and had asked his advice. He said that the priest had told him that he was going to help him and that he would speak to someone. He said that the priest had told him to go to his hotel, that they would call him and that there would be a car waiting for him. He said that the priest had told him that he should take his luggage and go with this person. He said that the idea had been to tell the Egyptian Embassy in [City 4] that he had been kidnapped and killed and that this would end the whole search or asking about him.
[The applicant] said that the priest had mentioned someone whom he had referred to as ‘[Mr B]’, meaning a high-ranking person in Arabic. He said that he thought that the person who had come with the car had been from this [Mr B] and that he had met with this [Mr B] later on. He said that he did not know this person’s name: all he knew was that the priest had known this person and that this person had helped him. He said that from what he had seen the [Mr B] had been a wealthy person who had been helping the church and the people who came to the church. He said that possibly he was a businessman. I asked him if this [Mr B] had belonged to the Coptic Orthodox Church. [The applicant] said that he was not one hundred per cent sure but it was possible that he had been a member of the Coptic Orthodox Church because he had been the first person whom the priest had called. I put to him that in his response to the section 107 notice which once again he had said he had prepared himself he had said that he had been referred to one of the leading Christians of Maronite background. [The applicant] repeated that, because this [Mr B] had been the first person to whom the priest had talked, he thought that he had been from the Coptic church.
I put to [the applicant] that he had said that he had written the response to the section 107 notice himself and he had said in that response that this person had been Maronite. He had said that it had been with the assistance of the Maronite community in [Country 2] that he had been able to pretend that he had been kidnapped and killed. [The applicant] said that the [Mr B] had told him that the Maronite people would help him to make this story of him being kidnapped and killed and that the [Mr B] would pass this information to the Egyptian authorities. He said that he had written that this person had been Maronite because when he had explained to him what had been going to happen he had thought that this person had been a Maronite. He repeated, however, that in the beginning when the priest from the Coptic church had spoken to this person he had thought that this person had been Coptic. I put to him that it was only fair to him to say that I did not think that he had written the response himself at all: I thought that it was clear that someone else had written this for him. [The applicant] insisted that he had written the whole response himself. He said that he had been under pressure when he had written this and he was under pressure and stressed at the hearing as well.
I asked [the applicant] what had been the purpose of his trip to Egypt in December 2011. He said that the purpose had been to bring his wife and [child] to Australia. I put to him that they would have required visas. [The applicant] said that he had not known this. I put to him that he obviously had known this because he had applied for a visa to bring his wife here the first time. [The applicant] referred to the fact that he had had a [temporary] visa at that time whereas by this time he had been a permanent resident of Australia. He said that in 2011 after the Revolution in Egypt the Australian authorities had sent Qantas flights to bring back Australian citizens from Egypt because it had not been safe for them to stay in Egypt. He said that there had also been a warning that no one had been allowed to go to Egypt at that time because it was not safe. He said that what he had had in mind had been to take his wife and [child] and to go somewhere from where they would be able to come to Australia or to go and seek asylum at the Australian Embassy who would help him to get out of Egypt with his wife. He said that all this time he had been thinking about his wife and [child]. He said that the other thing was that he had been thinking that, after burning all the security buildings and the police stations, all the documents against people inside or outside Egypt had been burnt so he had been sure that nothing had been going to happen.

I put to [the applicant] that this was exactly the opposite of what he had said in his response to the section 107 notice. He had said that he had been concerned because he had had a record. [The applicant] repeated that after the burning of the National Security building and the police stations all the records had been burned. I put to him that he had said in his response that all the police stations had been attacked and all the information kept by the National Security offices had become available to the public and among those had been the files relating to him. He had said that this had been why the situation had been very risky, not only for him but for his wife and [child]. [The applicant] said that all the files had been with the public, not with the authorities, so the authorities had not had any record about him. He said that in this way he would have been able to take his wife and [child] and escape. I put to him that he had only been interviewed in relation to his application for a protection visa in October 2011 and at that time he had claimed that he was facing serious criminal charges in Egypt and he had produced a lot of supposed legal documents to prove this. I put to him that I had a little difficulty in accepting that he had believed that all these documents had been burned in the Revolution. [The applicant] said that he had not been working for the National Security. He said that at that time he had been worrying about his wife and [child]. He said that at that time lots of people had escaped from prisons and lots of people had escaped from the country. He said that he had thought that there would have been no records with the authorities at the airport because the records had been taken by the public or burned.
I put to [the applicant] that this was not what he had said in his application for a protection visa. I referred again to the fact that he had been interviewed in relation to his application in October 2011, only two months before he had gone back to Egypt. [The applicant] reverted to his earlier claim that he had been thinking that the Australian authorities would help him to bring his wife and [child] to Australia because he had become an Australian permanent resident. He said that he had done all this under pressure because he had been worried about his wife and [child]: he had been thinking that he had to save them. I put to him that the difficulty I had was that if he had been gaoled he would not have been able to save his wife and [child] from anything. [The applicant] asked if he should have stayed here. I put to him that he could have applied for a visa for his wife and [child] to come here. [The applicant] said that if he had applied for a spouse visa it would have taken more than a year and a half and they had been in lots of danger in Egypt. He said that he had been trying to save them from trouble.
I put to [the applicant] that what I did not understand was how he had been going to save his wife and [child] from trouble if he had thought that he had been going to be arrested at the airport. [The applicant] said that he had never thought that there would be any record for him in the airport to stop him in the airport or anything like that. He repeated that he had known that all the records had been burned or they had become public so the authorities had not had any records. I put to him again that he had been interviewed in relation to his application in October 2011, two months before he had gone back to Egypt. He had said that he had been going to be arrested on these criminal charges as soon as he arrived back in Egypt. [The applicant] said that this was right. I put to him that he was now saying that he had thought that he could go back to Egypt because all the records had been destroyed in the Revolution. [The applicant] repeated that this had been what he had thought but when he had arrived in Cairo they had detained him. He repeated that he had been thinking of his wife and [child]. He said that he had thought that if he took his wife and [child] and went anywhere they could go to the Australian Embassy who would help them to come to Australia but the scenario had been completely different. He claimed that his wife had still had a valid [temporary] visa to return to Australia at this time.
I put to [the applicant] that the first question I had to look at in relation to the cancellation of his visa was whether he had given incorrect answers in his application for a protection visa in the way described in the section 107 notice. I put to him that, given his decision to return to Egypt in December 2011, I might not accept that the claims which he had made in his application for a protection visa were true. I put to him that I might not accept that it was true that, as he had claimed, his wife had been interrogated at the airport when she had returned to Egypt, nor that he had feared that if he returned to Egypt he would have problems at the airport because the Egyptian intelligence had been waiting to interrogate him. I put to him that he had told me at the hearing that he had thought that all the documents had been destroyed in the Revolution but, as we had discussed, this had not been what he had said when he had been interviewed in relation to his application for a protection visa in October 2011. I noted that his then representative had produced documents to the Department in relation to his claims, one of which had supposedly been a court record dated [in] April 2011 which had referred to an ongoing investigation in relation to him relating to offences under Article 161 of the Penal Code. I put to him that I did not see how, if these documents were genuine, he could have believed that all the documents had been destroyed in the Revolution. I put to him that it was relevant that it was possible to get false copies of a range of official documents in Egypt. Corruption was a serious problem and document fraud was widespread.[1] I put to him that I might give greater weight to his decision to return to Egypt in December 2011 than I did to the documents which his then representative had produced.
[1] Australian Department of Foreign Affairs and Trade (DFAT), ‘EGY12187 - Religious conversion certificate’, 10 August 2011, CX270573; DFAT, ‘Egypt Legal process; Nasr City First Public Prosecution Office and fraudulent documents’, 3 July 2014, CX322827.
[The applicant] said that he had read in the media at the time that there had been people who had been imprisoned who had been freed. There had also been people outside the country who had had penal records who had returned to Egypt and there had been no trouble. He repeated that his wife had had a valid visa at the time and he referred to the evidence which had been produced in support of his application for a protection visa that she had applied to the Public Prosecutor’s Office to allow her to leave the country. He referred to the fact that his wife had returned to Egypt in July 2010 and he said that if she had not been prevented from leaving Egypt she would have come back to Australia. He referred to the fact that his [temporary] visa had expired in July 2011 and he said that his wife could have returned to Australia during that period of time if she had not been prevented from leaving the country. He asked what had stopped his wife from coming if there was corruption and there were a lot of false documents in Egypt.
[The applicant] said that any mentally stable person would not have taken the decision to return to Egypt within two months of being granted a protection visa. He said that it had been the stress which he had been under. He said that he had waited for a year and a half for his wife to come but after he had been granted his protection visa he could have stayed for a longer period of time until his wife had been granted a spouse visa. He said that his wife had been in real danger and she had been prohibited from travelling. He said that this had been why he had gone to Egypt. He said that his mental health at the time had been completely disturbed. He repeated that he had thought that all the documents had been burned but that when he had arrived at the airport they had detained him. He said that he had never thought that this would happen. He said that since he had come back here in March 2012 he had not gone to Egypt, nor had any members of his family returned to Egypt. He said that because of the mistake he had committed because of his mental state during that period of time all his family - his wife and his children - would suffer for that mistake. He referred to the fact that his wife was pregnant again and he said that she could have a miscarriage because of the stress she was under.
[The applicant] repeated that he had told the Australian authorities that he was travelling to [Country 1] because he had been scared that they would stop him from going to Egypt. He said that there were no public hospitals or other facilities in Egypt and they did not provide treatment for sick children. He said that he knew he had made a mistake but he asked what he should have done in his position. He said that if he had been mentally stable at that time he would have applied for a spouse visa for his wife. He said that the Muslim Brotherhood and all the Islamic groups had been patrolling the streets in Egypt. He repeated that his wife had been prohibited from travelling and he asked again what he could have done at that time. He asked why he would have booked his flight to Egypt from here if he were lying. He suggested that if he were lying he would have booked to travel to some other country for which he did not require a visa and he would then have gone to Egypt from there. He repeated that he had gone to Egypt to save his family. He said that he now had three children with a fourth on the way. He said that there was a lot of trouble in Egypt now so if they went to Egypt there would be a real danger to their lives. He referred to what happened to girls and the kidnapping of children as mentioned in the media reports which he had produced.
I noted that, as I had indicated to [the applicant] earlier in the hearing, his wife and the two older children could apply for protection visas so I was not considering their situation if they went back to Egypt: I was just looking at his situation. I put to him that, as he had mentioned, he had said in his outgoing passenger card that he had been going to spend all his time in [Country 1]. I put to him that when he had come back he had said in his incoming passenger card that he had spent all his time in [Country 2]. [The applicant] said that this was proof of his mental state. He said that he had not been able to concentrate on what he had been doing. I put to him that I might take it as proof of exactly the contrary, namely that it had been a deliberate attempt on his part to deceive the Australian authorities by concealing the fact that he had spent all his time in Egypt. [The applicant] asked why he would have deceived the Australian Government.
I put to [the applicant] that at the time he had just been granted a protection visa on the basis that he feared being persecuted if he went back to Egypt. [The applicant] responded that this had been what had happened so he had not lied. He repeated that all he had been thinking about at the time had been his wife and [child]. He said that during all the time he had spent in Australia he had not been convicted of any criminal offences. He said that if a person lied they would lie about other things, not only in this area. He said that when he had booked the ticket the Australian authorities would have known that he had been travelling to Egypt. I put to him that Australia was not a police state so the Australian Government did not know when people booked tickets. The Australian Government gathered this information in outgoing passenger cards. [The applicant] said that during the 12 years for which he had been in Australia he had been working and paying tax like other Australians. He asked if the fact that he had made one mistake meant that his whole life had been full of mistakes.
I explained to [the applicant] that, if I found that he had given incorrect answers in the application form and in the outgoing and incoming passenger cards, this did not mean that his visa had to be cancelled: I had a discretion as to whether his visa should be cancelled or not and in exercising that discretion I was required to have regard to certain matters. I noted that he had already referred to some of the matters which I was required to take into account. I noted, for example, that it was relevant that so far as I was aware he had not broken the law while he had been in Australia. I noted that I was also required to take into account his present circumstances and that we had talked about the fact that he was employed and paying taxes. I noted that he had said that he had bought a home and that he was paying off his mortgage. I noted that we had also talked about the fact that his [Child 1] was in Grade [number] at school and we had also talked about his involvement in various churches in Australia. [The applicant] said that he had been settled here for six years now. He said that his [Child 2] was in [level] and would be starting primary school next year. He said that his [children] spoke English. He said that he was paying tax and living like a normal Australian citizen. He said that besides his involvement in churches he was not involved in other community activities: there was only his work as a [occupation].
I explained to [the applicant] that government policy required that the best interests of any children be treated as a primary consideration and that this meant that I had to consider what the best interests of the children indicated that I should decide in relation to the cancellation of his visa.[2] I indicated that, given that [Child 3] was an Australian citizen, I might take the view that the best interests of the children indicated that his visa should not be cancelled. I put to him that, even if I concluded that the best interests of the children indicated that the decision to cancel his visa should be set aside, it would still be open to me to conclude that the strength of other considerations outweighed the best interests of the children.[3] I put to him that in this context it might be relevant if I concluded that he would not have been granted a protection visa if he had not given incorrect answers in the application form. [The applicant] said that he understood.
[2] See Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 618 per Burchett J and 631 per Branson J; Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 at [26] per Branson, North and Stone JJ.
[3] See Wan, cited above, at [32] per Branson, North and Stone JJ.
I explained to [the applicant] that Government policy also required that I consider whether the cancellation of his visa would lead to his removal in breach of Australia’s obligations under various international agreements not to return a person to a country where they would face persecution or other forms of harm such as death or torture. I asked [the applicant] if there was there anything he wanted to say to me in relation to his removal from Australia. He asked if he would be removed on his own or with his family. I indicated to him that I could not tell him what would happen. I put to him that if he did not have a visa he would become an unlawful non-citizen and he would be liable to be removed from Australia. I noted that the only country which Australia could remove him to was the country of which he was a citizen, Egypt, so the Australian Government needed to look at whether removing him to Egypt meant that he would face persecution or other forms of harm. [The applicant] said that if they found out that he was still alive and that he had not been kidnapped and killed this would create a big problem for him.
I indicated to [the applicant] that I accepted that he was a Coptic Christian. I put to him that the Australian Department of Foreign Affairs and Trade had said that under the current administration in Egypt there had been a significant decrease in the scale and number of attacks against Copts.[4] [The applicant] said that the opposite was true: it was worse. I indicated to him that I also accepted that he had been involved in the Evangelical Church. I put to him that the Australian Department of Foreign Affairs and Trade had advised that, due to their smaller numbers and their less conspicuous public presence, non-Orthodox Christians appeared to experience relatively less violence than their Orthodox counterparts.[5] [The applicant] agreed. I asked him if there were any other matters he wished me to take into account. He referred to his children and his pregnant wife.
[4] DFAT Thematic Report - Egyptian Copts, 24 November 2015, paragraph 2.18.
[5] DFAT, ‘CIS Request No. EGY10290 - Evangelical Churches in Egypt’, 21 June 2010, CX245250.
[The applicant]’s representative said that he might produce evidence to support [the applicant]’s claims that during the time when he had returned to Egypt there had been a wave of people who had been considered illegal entrants to Egypt but who had been allowed to get in. He submitted that the legal system and the police system had been suspended at the time which was consistent with what [the applicant] had said. He said that he would also provide additional information in relation to the current situation of the Copts in Egypt. He said that the Coptic Pope was coming to Australia, probably in three to four weeks, to present his views about the persecution which Coptic Christians were suffering in Egypt.[6] He said that the views of the church published in the media did not match their actual view because of the safety and security of the Copts. He said that the Coptic Bishop of [City 2] had produced many documents to the Department of Immigration to prove that despite the current attempts by the Sisi administration to protect the Copts there were still problems. He said that the problem was not the regime but the people living in the country, the majority of whom were Muslims. He said that to change this attitude would not just take a year or two. He said that this was not just a problem in Egypt and that the Christian minorities living in most Arab countries - Syria, Iraq, Jordan and even Sudan - were also persecuted. I gave him until 18 April 2017 to provide this additional evidence. I asked [the applicant] if there was anything further he wished to add before I closed the hearing. He said that he knew that he had made a mistake but he asked me to take into consideration his family and his children.
[6] His Holiness Pope Tawadros II is actually due to visit Australia from 30 August to 13 September 2017.
In a submission dated 10 April 2017 [the applicant]’s representative referred to the attacks on two Coptic churches in Egypt, in Tanta and Alexandria, on the previous day, Palm Sunday, and he produced media reports in relation to these attacks. He said that they showed the lack of protection provided by the Egyptian Government. He also produced a media report dated 25 February 2017 quoting the General Bishop of the Coptic Orthodox Church in the UK, Bishop Angaelos, describing a recent spate of attacks on Christians in North Sinai as alarming. With regard to the situation when [the applicant] had returned to Egypt in December 2011 his representative produced two media reports referring to the fact that an influential Muslim Brotherhood theologian, Yusuf al-Qaradawi, had returned to Egypt in February 2011 to deliver a sermon in Tahrir Square. He also produced a media report dated 31 January 2011 referring to the evacuation of foreigners from Egypt following the Revolution. Finally he produced a copy of a media report relating to the case of Bahaa el-Din Ahmed Hussein el-Akkad, a former Muslim Sheikh who converted to Christianity and who was arrested in Cairo on 6 April 2005 and charged with ‘insulting a heavenly religion’ under Article 98(f) of the Egyptian Penal Code. He was released from prison on 28 April 2007. [The applicant]’s representatives submitted that this case was ‘nearly identical’ to that of [the applicant] but with the greatest respect it appears to bear no similarity to his case at all.
Conclusions

At the hearing before me [the applicant] said that if a person lied in their protection visa application they would lie about other things, not only in this area. However I do not accept that this follows. I accept that [the applicant] is otherwise of good character but I consider that the fact that he returned to Egypt in December 2011, less than two months after he had been granted his protection visa, clearly indicates that the claims which he made in support of that application - that he was facing serious criminal charges and that the Egyptian intelligence were waiting to interrogate him should he return to Egypt - were not true. At the hearing before me [the applicant] argued that he had thought that all the documents kept by the National Security had been burned during the Revolution (at the beginning of 2011) so he had been sure that nothing would happen to him when he returned to Egypt. However, as I put to him, he was interviewed in October 2011 in relation to his application for a protection visa and he maintained his claims at that time. His then representatives produced supposed legal documents to the Department in support of his application and, while I accept that some of these predated the Revolution, the most recent purported to be a court record dated [in] April 2011 which referred to an ongoing investigation in relation to him relating to offences under Article 161 of the Penal Code. As I put to [the applicant], I do not see how, if these documents were genuine, he could have believed that all the documents had been destroyed in the Revolution.
I accept that, as [the applicant] said in the course of the hearing before me and as indicated in the media reports which his representative produced after the hearing, there was a breakdown in law and order at the time of the Revolution. However I do not consider that it is possible to reconcile [the applicant]’s decision to return to Egypt in December 2011 with the claims which he made in support of his application for a protection visa. [The applicant] said that he had made a mistake and that any mentally stable person would not have taken the decision to return to Egypt within two months of being granted a protection visa. I accept that in returning to Egypt as he did [the applicant] was actuated by his concern for his wife and [child]. I consider that, given the situation in Egypt at the time, this was perfectly understandable but unfortunately it leads me to the conclusion that the claims which he made in support of his application for a protection visa were not true. [The applicant] said that if it were not true that, as he had claimed, his wife had been prevented from leaving Egypt, she could have returned to Australia while she still held a valid visa or he could have applied for a partner visa for her rather than returning to Egypt as he did. I consider it clear on the evidence before me that, rather than returning to Egypt in July 2010 to see her gravely ill mother, as [the applicant] said in his application for a protection visa, his wife returned to Egypt at that time because she was not coping well with their [Child 1] and she wanted the support of her family. As I put to [the applicant], I consider that, if he had genuinely believed that the Egyptian intelligence were waiting to interrogate him should he return to Egypt, as he claimed in his application for a protection visa, it would not have assisted his wife and [child] for him to return to Egypt. [The applicant] said that if he had applied for a spouse visa it would have taken more than a year and a half and they had been in lots of danger in Egypt. I accept that, as he said, he was trying to save his wife and [child] from trouble but I remain of the view that his decision to return to Egypt in December 2011 provides strong evidence that the claims which he made in support of his application for a protection visa were not true.
[The applicant] has also referred in this context to the fact that he travelled to [Country 2] briefly before returning to Australia in March 2012. He has said that there would have been no reason for him to travel to [Country 2] ‘unless the trip and to stay there for a week has some facts behind it’. In his response to the section 107 notice he said that he had been asked by the Egyptian authorities to travel to [Country 2] to obtain information about Christian television channels broadcasting from [Country 2] and that while he had been there he had arranged for the Egyptian authorities to be given news that he had been kidnapped and killed by Hezbollah. In his response he said that in [Country 2] he had gone straight to see a Coptic Christian friend in [City 4], that he had talked to people involved with [Father A] and that he had been referred to one of the leading Christians of Maronite background. He said that it had been with the assistance of the Maronite community in [Country 2] that he had been able to pretend that he had been kidnapped and killed. However at the hearing before me he said that after he had arrived in [City 4] he had searched for a Coptic church and he had spoken to the priest there. He said that the priest had had contact with [Father A], that the church had had a relationship with him and that possibly the people in the church had had a relationship with him as well. He said that the priest had arranged for a person whom he knew only as the [Mr B] (meaning a high-ranking person in Arabic) to help him and that he thought that the [Mr B] had been from the Coptic church.
As I put to [the applicant], I consider it clear from his evidence that (contrary to what he said at the hearing before me) someone else must have written the response to the section 107 notice for him given the differences between what he said at the hearing before me and what was written in the response. As I put to him, he did mention in the response that he had talked to a priest at a Coptic church in [City 4] but this had been to seek advice. He said that the priest had told him that it would be a sin if he killed himself. I consider that the inconsistencies in [the applicant]’s evidence with regard to what he did and who he contacted in [City 4] cast doubt on whether he is telling the truth about his visit to [Country 2]. Given that, as I have said, I consider that his decision to return to Egypt in December 2011 indicates that the claims which he made in support of his application for a protection visa were not true, I do not accept that he was asked by the Egyptian authorities to travel to [Country 2].
With regard to his incorrect answers in his outgoing and incoming passenger cards, suggesting respectively that the country where he would spend most time abroad was [Country 1] and that the country where he had spent most time abroad had been [Country 2], [the applicant] said that this was proof of his mental state. He said that he had not been able to concentrate on what he had been doing. However, as I put to him, I consider that it indicates the contrary, namely that it was a deliberate attempt on his part to deceive the Australian authorities by concealing the fact that he had spent all his time in Egypt. [The applicant] asked why he would have deceived the Australian Government but, as I put to him, the reason was obviously that less than two months previously he had been granted a protection visa on the basis that he feared being persecuted if he went back to Egypt. [The applicant] has referred to the fact that he booked his travel to Egypt from Australia and he has suggested that he would not have done this if he had wanted to conceal his travel to Egypt from the Australian Government. However, as I put to him, the Australian Government does not routinely monitor travel bookings and would not have known that he had booked to travel to Egypt: it relies on people filling in outgoing passenger cards for this information.
For the reasons given above I consider that [the applicant]’s decision to return to Egypt in December 2011 logically leads to the conclusion that the claims which he made in support of his application for a protection visa - that he was facing serious criminal charges and that the Egyptian intelligence were waiting to interrogate him should he return to Egypt - were not true. I therefore consider that he did not comply with paragraph 101(b) of the Migration Act in that he provided incorrect information in his application form for a protection visa. (By virtue of section 99 any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to an officer, whether the information is given or provided orally or in writing and whether at an interview or otherwise, is taken for the purposes of paragraph 101(b) to be an answer to a question in the non-citizen’s application form.) I likewise consider that [the applicant] did not comply with paragraph 102(b) of the Migration Act in that he said in his outgoing passenger card in December 2011 that the country where he would spend most time abroad was [Country 1] and he said in his incoming passenger card in March 2012 that the country where he had spent most time abroad had been [Country 2] although in fact, as he concedes, the country where he spent most time abroad was Egypt. I therefore find that there was non-compliance with paragraphs 101(b) and 102(b) of the Act by [the applicant] in the way described in the section 107 notice.
Should the visa be cancelled?
As I have found that there was non-compliance in the way described in the section 107 notice, it is necessary to consider whether to exercise the discretion to cancel the visa under subsection 109(1) of the Migration Act. I have considered [the applicant]’s response to the section 107 notice and I have also had regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.
The correct information: I consider that the correct information is that [the applicant] has never been of interest to the Egyptian authorities, that he was not under investigation for offences under Article 161 of the Penal Code because of his involvement in converting [number] Muslims to Christianity while he was at university, that his wife was not interrogated when she returned to Egypt in July 2010 nor prevented from leaving Egypt until he returned to Egypt, and that the Egyptian intelligence were not waiting to interrogate him on his return to Egypt. So far as the passenger cards are concerned, I consider that the correct information is that [the applicant] spent most of his time in Egypt when he left Australia in December 2011 and returned in March 2012.
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: I consider it clear on the basis of the evidence before me that the decision to grant [the applicant] a protection visa was based on his claim that he was facing criminal charges under Article 161 of the Penal Code and that the Egyptian intelligence were waiting to interrogate him on his return to Egypt.
The circumstances in which the non-compliance occurred: As referred to above, [the applicant] has maintained that he did not give incorrect information to the Department in his application for a protection visa so he has not advanced any mitigating circumstances to explain why he would have done so. ([the applicant] has referred to his mental state when he returned to Egypt but this is a different issue and not relevant to the non-compliance with paragraph 101(b) in relation to his application for a protection visa.)
The present circumstances of the visa holder: I accept that [the applicant] is working full-time as a [occupation], that he has bought a house and that he is paying off his mortgage. I accept that his [Child 1] is in Grade [number] at primary school, that his [Child 2] is in [level] and will start primary school next year and that they speak English.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: As referred to above, [the applicant] has maintained that did not give incorrect information to the Department in his application for a protection visa.
Any other instances of non-compliance by the visa holder known to the Minister: On the basis of the evidence before me there are no other instances of non-compliance by [the applicant] known to the Minister.
The time that has elapsed since the non-compliance: The relevant non-compliance in the present case took place when [the applicant] made his application for a protection visa in December 2010 so over six years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches: On the basis of the evidence before me [the applicant] has not breached the law since the relevant non-compliance.
Any contribution made by the holder to the community: I accept that [the applicant] has paid his taxes. I accept that he and his family attend [a] Coptic Orthodox Church in [Suburb 2] on Sunday mornings, that he previously attended [Church 1] in the afternoon and that he and the children now attend [Church 2] in the afternoon.
If there are children in Australia whose interests could be affected by the cancellation, delegates are obliged to treat as a primary consideration the best interests of the children: I accept that [the applicant] and his wife have three [children], the youngest of whom is an Australian citizen, and that his wife is currently pregnant with their fourth child (due in August). As referred to above, I accept that his [Child 1] is in Grade [number] at primary school, that his [Child 2] is in [level] and will start primary school next year and that they speak English. The question in this context is what the best interests of the children require the decision-maker to decide with respect to the cancellation of the visa[7] and I accept that the best interests of [the applicant]’s [children] require that I decide that the his visa not be cancelled. However, as I explained to him, the strength of other considerations can outweigh the best interests of the children.[8]
[7] See Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 618 per Burchett J and 631 per Branson J; Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 at [26] per Branson, North and Stone JJ. While these cases concern a criminal deportation decision and a decision to refuse to grant a visa on character grounds, respectively, the principles outlined appear equally applicable in the present context.
[8] See Wan, cited above, at [32] per Branson, North and Stone JJ.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements: As I indicated to [the applicant], I consider that I am only required to consider his removal from Australia, not that of his wife and children. [Child 3] is an Australian citizen and therefore has the right to remain in Australia. I understand that his wife’s visa and the visas of his two older children have been cancelled in consequence of the cancellation of his own visa and that they have applied to the Tribunal for review of that decision. As I explained to him, because his wife and the two older children have not applied for protection visas previously, they will be able to apply to the Department for protection visas if their visas remain cancelled and the problems which they may encounter if they were to return to Egypt can be considered in that context. For the reasons given above I consider that [the applicant] has never been of interest to the Egyptian authorities and that he is not under investigation for offences under Article 161 of the Penal Code because of his involvement in converting [number] Muslims to Christianity while he was at university. [The applicant] has said that his mother-in-law has applied for a protection visa and that his wife’s father and [sibling] are in hiding in a place that is part of the Coptic Orthodox Church in [City 1]. Although he said at the hearing before me that he would be targeted because of their problems as well he was unforthcoming as to how anything that had happened to his wife’s family would affect his situation if he went back to Egypt.
As I indicated to [the applicant], I accept that he is a Coptic Christian and that he attended both the Coptic Orthodox Church and the Evangelical Church in Egypt.[9] As I put to him, the Australian Department of Foreign Affairs and Trade has said that under the current administration in Egypt there has been a significant decrease in the scale and number of attacks against Copts.[10] [The applicant] said that the opposite was true: it was worse. His representative said that the problem was not the regime but the people living in the country, the majority of whom were Muslims. He undertook to produce further evidence after the hearing and in his submission dated 10 April 2017 he referred to the attacks on two Coptic churches in Egypt, in Tanta and Alexandria, on the previous day, Palm Sunday, and he produced media reports in relation to these attacks which he said showed the lack of protection provided by the Egyptian Government. He also produced a media report dated 25 February 2017 quoting the General Bishop of the Coptic Orthodox Church in the UK, Bishop Angaelos, describing a recent spate of attacks on Christians in North Sinai as alarming.
[9] The term ‘Evangelical’ in Arabic is ingili or injili, which can be translated as ‘Anglican’ although it in fact refers to various Protestant denominations, including the Anglican church.
[10] DFAT Thematic Report - Egyptian Copts, 24 November 2015, paragraph 2.18.
[The applicant]’s representative also produced a copy of a media report relating to the case of Bahaa el-Din Ahmed Hussein el-Akkad which he submitted was ‘nearly identical’ to that of [the applicant] but, as I have said above, it appears to bear no similarity to his case at all. As I also put to [the applicant], the Australian Department of Foreign Affairs and Trade has advised that, due to their smaller numbers and their less conspicuous public presence, non-Orthodox Christians appear to experience relatively less violence than their Orthodox counterparts.[11] [The applicant] agreed. I accept that there have been terrorist attacks on Coptic churches in Egypt. In his response to the letter in relation to the ITOA [the applicant] referred to the terrorist attack on St Peter and St Paul’s Church in Cairo on 11 December 2016 in which 28 people were killed. The attacks on Palm Sunday are the most recent examples. In considering the risk to [the applicant] in this context, however, it is relevant that he comes from [City 1] in Upper Egypt where he worked for over a decade before coming to Australia in 2005. The terrorist attacks on churches have been in places like Cairo and Alexandria and in major population centres north of Cairo like Tanta. I accept that there was communal violence against Coptic churches in [City 1] among other places in 2013 following the overthrow of the Muslim Brotherhood government but I accept the advice of the Australian Department of Foreign Affairs and Trade that, since President Sisi came to power, widespread attacks against Copts have ceased and that there is a low risk of such attacks recurring.[12] Having regard to my rejection of [the applicant]’s claims regarding his involvement in converting four Muslims to Christianity while at university, I do not accept on the evidence before me that there is a real chance or a real risk that he will face persecution or other forms of harm for reasons of his religion as a Coptic Orthodox Christian who also attends the Evangelical Church if he returns to Egypt now or in the reasonably foreseeable future.
[11] DFAT, ‘CIS Request No. EGY10290 - Evangelical Churches in Egypt’, 21 June 2010, CX245250.
[12] DFAT Thematic Report - Egyptian Copts, 24 November 2015, paragraphs 4.18-4.23.

Conclusions: As referred to above, [the applicant] has maintained that he did not give incorrect information in his application for a protection visa despite returning to Egypt less than two months after he was granted his visa. I accept on the evidence before me that he has otherwise been a hard-working and law-abiding resident of Australia. I consider it significant in this case that, although I consider that [the applicant] attempted to conceal from the Australian Government that he had travelled back to Egypt from December 2011 to March 2012, his wife made no attempt to conceal the fact that he had been in Egypt when she was interviewed in relation to her application for a partner visa in June 2012. In other words, the Department of Immigration has been aware that [the applicant] visited Egypt since that time. Rather than taking action to cancel [the applicant]’s visa at that time the Department granted his wife and the two older children visas to come to Australia. As referred to above, since that time [the applicant] and his wife have had a third child who is an Australian citizen and his wife is now pregnant with their fourth child.
As a result of the Department’s actions [the applicant]’s two older children have established themselves in Australia. [Child 1] is in Grade [number] at primary school, his second oldest [child] is in [level] and will start primary school next year and they both speak English. I give particularly significant weight to the fact that [Child 3] is an Australian citizen by birth and is entitled to grow up in Australia. Were [the applicant]’s visa to remain cancelled, and were his wife and their [Child 1 and Child 2] to be unsuccessful in obtaining protection visas, [Child 3] would either be separated from the rest of the family, thus breaching the family unity principle enshrined in the International Covenant on Civil and Political Rights and the Convention of the Rights of the Child, or [Child 3] would have to go to Egypt with the rest of her family and would thereby be deprived of the undoubted benefits of growing up in Australia to which [Child 3] is entitled as an Australian citizen. As I indicated to [the applicant], I accept that the best interests of his [children] - and in particular of his [Child 3], Australian citizen [child] - require that I decide that his visa not be cancelled and I consider that in the present case the best interests of the children outweigh the strength of the other considerations suggesting that [the applicant]’s visa should be cancelled. Having given careful consideration to all of the relevant circumstances, therefore, I have concluded that [the applicant]’s visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
Subsection 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104 or 105 or with subsection 107(2) of the Migration Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in their circumstances.
The exercise of the cancellation power under section 109 of the Migration Act is conditional on the Minister issuing a valid notice to the visa holder under section 107, giving particulars of the alleged non-compliance. If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.

[2017] AATA 772

18 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice