1702393 (Refugee)

[2021] AATA 3565

1702393 (Refugee) [2021] AATA 3565 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1702393

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Nicole Burns

DATE:10 August 2021

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 10 August 2021 at 10:39am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – disrespecting Islam – attacks by Muslim extremists – sentenced to imprisonment in absentia – alleged forced conversion of Muslims – fear of arrest – honour killing – anti-Christian violence – selective enforcement of the defaming religion law – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 91
Migration Regulations 1994, Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

2. The applicants are a retired married couple from Egypt, who applied for the visas on 16 June 2014 and the delegate refused to grant the visas on 24 January 2017. They last came to Australia [in] April 2014 holding visitor visas and Egyptian passports. The Tribunal accepts they are nationals of Egypt in order to assess their protection claims.

3. The applicants appeared before the Tribunal on 22 June 2021 and 14 July 2021 and gave evidence and presented arguments about the issues in their case. The Tribunal also received oral evidence from their son in Australia, [Child A]. The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. She attended the hearings.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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).

7. 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.

8. 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’).

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims and evidence

10. In summary, the first named applicant (hereafter the applicant) claims to fear harm from Muslim extremists and the authorities as a Coptic Christian who has been charged with several crimes, and sentenced to a term of imprisonment in absentia, based on allegations that he forced a Muslim woman and her two daughters to convert to Christianity.

11. The applicant’s specific claims were set out initially in the protection visa application and in an attached typed statement titled ‘My Story’. In it the applicants claimed to have left Egypt because of (allegedly) false charges against the applicant brought about by the husband ([Mr B]) of a Muslim woman who the applicant had helped provide accommodation for (and her two daughters) through his local church. [Mr B] subsequently alleged that the applicant had abducted his wife and daughters, forced them into prostitution, and forced them to convert to Christianity from Islam. The applicant claimed that prior to his arrest, detention and interrogation in relation to these matters, a group of bearded men attacked and beat him ‘severely’ on two occasions: once at his apartment in El-Mahalla (Gharbia Governorate), and the other time at his apartment in Alexandria.  He claims further that after leaving Egypt, his son who remained there – [Child C] – has had to hide and is at risk.

12. To support his claims, the applicant provided to the Department translated and certified copies of police reports from Egypt’s [Agency 1] and [Agency 2], prosecution reports, and a court order issued by the [Court 1].  The delegate had these documents examined by a staff member in their document examination unit (DEU) who concluded [in] August 2016 that the documents lacked credibility due to their manner of production. On this basis, and given other credibility concerns including what she considered was the applicants’ rehearsed oral evidence at interview, the delegate did not accept their core claims and refused the visa application on mek24 January 2017.

13. On review, the applicant’s representative provided to the Tribunal a written submission addressing the applicants’ background, reasons for leaving Egypt and extant fears. Also submitted was a translated copy of a letter (undated) from the applicant’s lawyer in Egypt, [named], about the applicant’s court case.  At the Tribunal hearing, the applicant’s son ([Child A]) said he obtained the letter from his father’s lawyer directly when he visited Cairo in 2018. In that letter, the lawyer confirms that he obtained the following true copies of original documents from the Egyptian authorities in relation to the applicant’s case:

    ·     [Agency 2] – [Police Station 1] Official Police Report ([September] 2013)

    ·     [Agency 1] – [Prosecution Office 1] – Official Prosecution Interrogatory Regarding Case No. [number] ([September] 2013)

    ·     [Agency 1] – [Prosecution Office 2] ([September] 2013)

    ·     [Agency 3] – [Police Station 2] – Official Police Report ([March] 2014)

    ·     [Agency 1] – [Prosecution Office 2] – Continuation of Official Prosecution Interrogatory Regarding the Case No. [Number] – Administrative, [Police Station 2] ([March] 2014)

    ·     [Agency 1] – [Court 1] No. [number] Court Order ([August] 2014)

14. The Tribunal notes in that letter the applicant’s lawyer states that he also provided receipts from the authorities as further evidence that the documents were legally obtained.  However these were not attached.  In a post hearing statutory declaration[1] [Child A] states that the lawyer did not give him any receipts when he handed him the letter when he was in Egypt in 2018.  He also states that his attempts to contact the lawyer have been in vain, as he is not answering his mobile phone.  This is consistent with his (and the applicant’s) oral evidence at hearing that the lawyer has been unreachable of late, given threats he has received in relation to the applicant’s court case (discussed in more detail below).

    [1] Dated 4 August 2021

15. Also provided to the Tribunal was a letter from a social worker ([named]) dated 16 June 2021.  She states that she has provided counselling and support to the applicants since late 2019. She notes they have been depressed due to losing their home, family and friends in Egypt, and that the applicant believes he will be sent to gaol or killed by the ‘Islamic Brotherhood’ if he returns.

16. Over the course of two hearings, the applicant gave evidence about his background, life in Egypt and reasons for leaving, summarised as follows. He said he was [an Occupation 1] in Egypt, who retired in [year]. He lived with his wife – who retired from working in [specified industry] in 2012 – in an apartment they owned in El-Mahalla, Gharbia Governorate. They owned another apartment there as well as an apartment in Alexandria. Their son and daughter had migrated to Australia years before on skilled visas, and another son ([Child C]) lived and worked in Cairo. They had a happy life until the problems that started after they decided to help a Muslim woman (and her two daughters) who had left her husband by letting her stay in a vacant apartment they owned in El-Mahalla, after being approached by their local priest in mid-2013. The woman and her daughters stayed in the applicant’s apartment for about two months, before they were moved elsewhere around the time of significant political (and religious) unrest in Egypt. The applicant said he and his wife had nothing to do with them – their stay was organised through the church.

17. The applicant said they were staying in their apartment in Alexandria sometime after the Muslim woman and her daughters had left their El-Mahalla apartment when they received a phone call from neighbours in El-Mahalla advising that ‘strange’ persons had visited several times, enquiring about the applicant. They returned to El-Mahalla and found a summons from the prosecutor’s office at their apartment. The next day the applicant visited the [Official 1’s office] and was told the summons related to a complaint made against him by a man called [Mr B] from southern Egypt who had accused him of kidnapping his wife and daughters, and of forcing them to convert to Christianity. The applicant denied the charges and was released: the [Official 1] noted he could not find any evidence to substantiate the allegation.

18. Around 10 days later, after Friday prayers, the applicant said a group of men from a nearby mosque (along with some of his neighbours) came to the gate leading to his apartment in El‑Mahalla and started yelling his name. On opening the gate, some of the men attacked him, including with wooden sticks, and accused him of kidnapping [Mr B’s] wife and daughters, and forcing them to convert.  Apparently the imam at the mosque had announced earlier that a man called ‘[applicant’s first name]’ was responsible. The men then searched both of the applicant’s apartments in El‑Mahalla and left after they could not find anything. The applicant did not tell the police about the incident, worried it could have turned into a bigger matter, given the unrest in the country at the time and related attacks on Christians (and other minorities) by Muslim fundamentalists. The applicant’s friend who was a doctor treated his injuries at a small private hospital.

19. After this incident, and on advice from his adult children, the applicant and his wife decided to try and sell their apartment in El-Mahalla and he contacted a real estate agent who found a buyer. Because of the political unrest, the timing was not good, and the applicant ended up selling his apartment for far less than its actual value.

20. The applicant and his wife then moved to their apartment in Alexandria, at the beginning of October (2013). In early 2014, the caretaker of the apartment block told the applicant a strange person had been asking about him: the applicant suspected it was [Mr B]. Fearful, they decided to apply for a visitor visa to Australia around this time. Shortly after, a group of around seven men, including [Mr B], came to their apartment in Alexandria, attacked and beat the applicant and his wife, and damaged their furniture. One of the men tried to stab the applicant with a knife before running away. Their neighbours called police who on arrival were told by the men that the applicant had kidnapped a Muslim man’s family. The police took the applicant and the men to the police station at [location] along with some of his neighbours. Despite the applicant and his neighbours’ protestations, the police believed the (fundamentalist Muslim) men, refused to allow the applicant to lodge a complaint, verbally abused him, and remanded him in a police cell for eight days in total (four days at [Police Station 2] and four days at [the Official 1’s] office). During that time, the applicant said he was mistreated by police and other inmates. He was interviewed by the [Official 1] in [location] (with his lawyer) who indicated charges would be laid, noting the previous allegation against him in El‑Mahalla. After eight days, he was charged with several offences, including showing disrespect for the Islamic religion, and was released on bail on [a date in] March 2014, after paying [amount] Egyptian pounds.

21. The day after he was released on bail, the applicant and his wife went to stay with their son in Cairo. Their lawyer had advised that the charges against the applicant may result in a long prison sentence. In Cairo they booked flights and then left Egypt on the earliest flight available: [in] April 2014. The applicant had no problems leaving because at that time, no measures had been put in place banning him from leaving the country.

22. At the end of August 2014, the applicant said he was sentenced to [a term] in prison at a court in Alexandria, found guilty of disrespecting Islam on the basis that he allegedly forced [Mr B’s] wife and daughters to convert to Christianity. The applicant said he obtained a copy of the verdict from his lawyer who had paid money to clerks in the relevant offices: he provided that copy to the delegate at his interview on 18 April 2016.[2]

    [2] The decision record incorrectly refers to the interview date as ‘18 April 2014’

23. The applicant said after he left Egypt, the parties associated with [Mr B] contacted his lawyer in Egypt, asked his whereabouts and threatened him. Worried they would find [Child C] to exact revenge; the applicant asked the church to help find him accommodation in various parts of the country. Thereafter [Child C] moved around often up until around two years prior to the hearing when he migrated to [Country 1] after marrying [a Country 1] woman.

24. The applicant said he is not exactly sure how [Mr B] came to suspect him of helping his wife and daughters, nor how he located him. However he discovered that [Mr B’s] wife had [a Relative A] who lived in El-Mahalla who she stayed with initially after leaving her husband. When [Mr B] came looking for his wife, her [Relative A] said she knew of someone called ‘[applicant’s first name]’ who had links with the [Official B] and gave [Mr B] the applicant’s address. (The applicant clarified that he has never even met the [Official B].) According to information from [Mr B’s] complaint lodged through the [Official 1], [Mr B’s] wife was [an occupation] who had a Christian neighbour where they lived in the south. This neighbour purportedly convinced [Mr B’s] wife to leave him and the area and had said she knew someone who was on good terms with the secretary to the [Official B], who might be able to help her find a job. He suspects these events led to [Mr B] locating him and blaming him.

25. The applicant said if he returns to Egypt, he will be arrested and imprisoned immediately. He noted very poor prison conditions and the possibility of being mistreated in prison, particularly for Christians and those accused of disrespecting Islam. He is also worried given his health problems ([specified]) and his age. He said he is also fearful of what [Mr B] and other Muslim fundamentalists might do to him if they discover he has returned.

26. The applicant’s wife corroborated her husband’s account about his experiences in Egypt, the court matter and current fears in her oral evidence to the Tribunal. She said it was her insistence to help the Muslim woman and her daughters that led to the situation in which her husband found himself, for which she was sorry. She added that she does not regret their decision, however, given her conviction that the woman and her daughters would have otherwise been killed by [Mr B] – given it is a matter of ‘honour’ for him – and the community would have allowed it and offered them no protection. However at the time she never expected what happened was going to happen.

27. The applicant’s wife emphasised to the Tribunal that the turbulent security and political situation exacerbated their problem, as fundamentalists were emboldened, behaved in brutal ways, and they had no one to protect them. [Mr B’s] efforts to find his wife and daughters, and sense of shame that his wife had left him, were amplified by the unrest which had religious undercurrents, specifically against a backdrop of a revolution against the then government of the Muslim Brotherhood and resultant protests, riots, and attacks on minorities including Christians. At the same time, law and order had broken down in the country, with a lack of police, and in some instances police themselves were attacked, with police stations being burnt (for example).

28. With respect to concerns raised by the DEU about the credibility of the police and prosecution documents, and the court order provided by the applicant, at hearing, the representative stated that all the documents issued by relevant ministries such as the [Agency 2] (as set out in the lawyer’s letter) have been certified and authenticated by the Ministry of Foreign Affairs in Egypt.

29. At hearing, the applicant said he tried to get copies of all the relevant files regarding his court case, arrest and charges, including police interviews in period between early May 2014 and when he lodged his protection visa application (on 16 June 2014), which cost a lot. His son, [Child C], paid their lawyer who got copies of the relevant documents; stamped and certified as official copies; and then [Child C] forwarded them to him to enclose with his application. The applicant said when he received the letter from the delegate indicating the DEU’s concerns about the credibility of the documents, he was confused as to what the specific problems were. Nonetheless he noted that obtaining and issuing such documents in Egypt is not necessarily the same process (or quality) as in Australia, or even across his own country.

    Findings with respect to the applicants’ past experiences in Egypt and related claims

1. The Tribunal found the applicant’s oral evidence detailed, coherent and spontaneous, and corroborated by his wife’s considered oral evidence. Over the course of two hearings and several hours, the applicants were able to describe their experiences in Egypt that led to them leaving in a persuasive way. Further, the applicant’s oral evidence was consistent with his detailed written claims before the Department and country information about the political unrest and security situation in Egypt, the backdrop in which the incidences involving [Mr B], Muslim fundamentalist supporters and the police implicating the applicant took place.

2. That is in 2013 large‑scale anti‑Christian violence occurred in Egypt in the wake of protests against Morsi’s (Muslim Brotherhood’s) presidency. Following protests, the military removed Morsi from power and reinstalled an interim military regime in July 2013.[3] DFAT report that the general breakdown in law and order nationwide following the 2011 Revolution peaked in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools and private property, and people were killed in communal‑related killings. DFAT report that most, but not all, of the incidents were marked by a slow police response.[4] Christian communities and individuals experienced mob violence and individual attacks, often fuelled by rumour and social media.

   [3] DFAT Country Information Report, Egypt, 17 June 2019 at 2.3, 2.4

   [4] DFAT Country Information Report, Egypt, 17 June 2019 at 3.23

3. The fact the applicant was able to leave Egypt in April 2014 whilst on bail for several charges, including ‘disrespecting’ Islam, does raise a question about his claimed charges (and related experiences). As noted, the applicant said he was able to do so because his name was not on a watchlist and he was not otherwise banned from leaving the country at the time. Given the Tribunal found him a credible witness and country information indicates not all people with charges against their names (or with trials or appeals pending) are automatically put on the government’s warning list,[5] the Tribunal accepts the applicant’s claims in this regard. It does not draw an adverse inference from the fact that he was able to leave the country on his own passport whilst on bail, without any problems.

   [5] DFAT Country Information Report, Egypt, 17 June 2019 at 5.35

4. For these reasons, the Tribunal accepts the applicant’s core claims. That is, it accepts he was charged and sentenced to a [term] of imprisonment for several offences, including ‘disrespecting’ Islam following complaints made by a Muslim man – [Mr B] – who accused him of kidnapping his wife and daughters and forcing them to convert to Christianity (among other things). It accepts he was detained for a total of eight days in Egypt in relation to these allegations and experienced verbal abuse and mistreatment at the hands of the police; was bailed after paying [amount] Egyptian pounds; and was sentenced to [a term of] imprisonment a few months after he left Egypt, in absentia. The Tribunal accepts the applicant was threatened and attacked by [Mr B] and others on two occasions prior to being detained: once at his apartment in El-Mahalla in mid-2013 and the second time at his apartment in Alexandria in around March 2014. It accepts his wife was also attacked when the group of men attended their apartment in Alexandria. The Tribunal accepts that after the applicants left Egypt, their lawyer was approached by [Mr B’s] supporters and threatened and no longer wants to be involved in the case (as indicated by their son, [Child A], at hearing). It also accepts their son, [Child C], who remained in Egypt, kept a low profile by moving around the country and staying in accommodation supported by the church to avoid [Mr B] and his supporters prior to moving to [Country 1] around two years ago.

5. In reaching these findings about the applicant’s past experiences in Egypt, the Tribunal acknowledges the concerns raised by the DEU about the veracity of the police reports (from the [Agency 1] and [Agency 2]) and the court order (from the [Court 1]) the applicant provided to the Department which does raise doubts about the genuineness of the documents and, in turn, his claims. However these concerns are outweighed, in the Tribunal’s view, by the positive aspects of this case, including the strength of the applicant’s account of his experiences, which was corroborated by his wife’s oral evidence, and the letter from his lawyer in Egypt who confirmed he obtained the documents, and the process.

   Are the applicant’s fears of persecution on return to Egypt well-founded?

6. Given these findings, the Tribunal has gone onto consider if the applicant faces a well‑founded fear of persecution on return to Egypt as a Christian who has been sentenced to a term of imprisonment for ‘disrespecting’ Islam, among other charges.

7. In her submission to the Tribunal, the representative argues the applicant has a well‑founded fear of persecution from the police and Islamic extremist groups in Egypt due to his Christian religion, heightened by accusations that he assisted a Muslim-Christian convert family. She refers to country information from a variety of sources about the general political, social and security landscape in Egypt, and specifically about the situation that religious and other minorities face (among other things) to support her contentions in this regard. The Tribunal has had regard to this submission, the country information contained within it and additional country information relevant to the applicant’s claims to determine if his fears on return to Egypt now or in the reasonably foreseeable future are well-founded, as discussed below.

8. The Tribunal accepts the applicant has been arrested, charged, found guilty and sentenced (in absentia) in relation to several crimes in Egypt described by his lawyer in his letter as the crimes of ‘kidnapping, detention, attempting to alter official paper, forcing Muslims to convert to Christianity and disdaining Islam’; the latter which the applicant referred to as ‘disrespecting’ Islam/religion at hearing, as noted. Article 98(f) of the Egyptian Criminal Code prohibits citizens from insulting or defaming religions, providing for prison sentences of up to five years and/or fines of up to EGP1000.[6] According to DFAT, defamation of religion cases were rare before the 2011 Revolution but rose considerably (in number of frequency of charges) under the Morsi government, and this trend continues under the current Sisi government.[7] DFAT attributes this rise to a changed environment created by the ascendancy of Islamist parties and heightened communal tensions, particularly in rural and poorer urban areas.[8]

   [6] DFAT Country Information Report, Egypt, 17 June 2019 at 3.12; DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.6

   [7] DFAT Country Information Report, Egypt, 17 June 2019 at 3.14; DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.7

   [8] DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.7

9. The Tribunal accepts, therefore, that on return to Egypt, it is highly likely the applicant will be apprehended by the authorities – either on arrival or shortly thereafter – and sent to prison to serve out his sentence. The representative submits that the charges against the applicant and prison terms imposed pursuant to them constitute persecution and are not laws of general application, given the laws under which he was charged are targeted and/or enforced primarily against Christians. Reference is made to reasoning set out in a (differently constituted) Tribunal matter[9] to support her contentions in this regard.

   [9] AAT No.1613162 [2019]

10. The Tribunal notes that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[10] However in respect of defamation of religion matters in Egypt, country information indicates that although the law applies to all Egyptians and all recognised religions, in practice it disproportionately affects individuals accused of defaming (Sunni) Islam;[11] there have been a number of high‑profile defamation cases against Coptic Christians;[12] and DFAT assesses that Copts are more likely to face prosecution under the defamation law and are more likely to be convicted than Sunni Muslims, but face a similar likelihood of prosecution and conviction to members of other religious minority communities (including Shi’a Muslims, Baha’is and declared atheists).[13] The majority of those sentenced to prison terms have reportedly been non‑Muslims.[14]

    [10] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]

    [11] DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.6; 'Country Reports on Human Rights Practices for 2019 – Egypt', US Department of State, 11 March 2020, p.24; ‘To Protect Religious Freedom in Egypt, Ease Authoritarian Restrictions', Freedom House, 21 November 2019; and 'United States Commission on International Religious Freedom Annual Report 2018', US Commission on International Religious Freedom, 25 April 2018, p.158

    [12] DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.8

    [13] DFAT Thematic Report Egyptian Copts, 24 November 2015 at 3.10

    [14] DFAT Country Information Report, Egypt, 17 June 2019 at 3.14

11. DFAT in their 2015 thematic report on Egyptian Copts assess that whilst Copts are generally treated equally in the judicial system in relation to normal court proceedings, in cases involving personal status issues or the issue of defamation of religion, evidence supplied by Muslim witnesses may be granted more weight than that supplied by non‑Muslim defendants or witnesses.[15]

    [15] DFAT Thematic Report Egyptian Copts, 24 November 2015 at 5.6

12. DFAT in its most recent country information report on Egypt (issued in June 2019) report that the judiciary can be subject to community pressure to rule in accordance with dominant social and political norms, particularly in cases where religion is a factor, and in-country sources have reported instances in Upper Egypt where conservative Muslim lawyers and/or community leaders have demonstrated outside courtrooms hearing defamation of religion cases, implicitly threatening community unrest in the event of an unsatisfactory ruling.[16] DFAT conclude that Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means in Egypt.[17]

    [16] DFAT Country Information Report, Egypt, 17 June 2019 at 5.11

    [17] DFAT Country Information Report, Egypt, 17 June 2019 at 3.36

13. Given such country information, the Tribunal is satisfied that in this case, the law is selectively enforced against Christians in a discriminatory manner and therefore cannot be properly described as a law of general application.

14. It is submitted that prison conditions are very poor in Egypt and the applicant as an elderly Christian with some health challenges who has experienced harm and threats from the authorities in the past would be particularly vulnerable in such a setting.

15. Country information indicates that prison conditions in Egypt are poor and potentially life‑threatening. DFAT note reports by human rights observers that prison conditions do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence.[18] DFAT understand that deaths in Egyptian detention facilities happen regularly, due to severe overcrowding, violence, and a lack of access to medical care and treatment.[19] The US Department of State notes ‘instances of persons tortured to death and other allegations of killings’ in prisons and detention centres’.[20] Other sources indicate that although criminalised, torture is systematically used, taking place in prisons and police stations.[21] Officers of the National Security Agency and other security forces reportedly torture and otherwise ill-treat detainees.[22] Prisoners detained for politically motivated reasons were reportedly subject to indefinite and prolonged solitary confinement.[23] Furthermore, reports indicate that COVID-19 is a significant threat in Egypt’s overcrowded prisons.[24]

    [18] DFAT Country Information Report, Egypt, 17 June 2019 at 5.31

    [19] DFAT Country Information Report, Egypt, 17 June 2019 at 4.7

    [20] 'Country Reports on Human Rights Practices for 2019 – Egypt', US Department of State, 11 March 2020, p.3

    [21] 'Permanent State of Exception', Amnesty International, 29 November 2019, Department of State, 11 March 2020, pp.2-7; 'Egypt: Police Beat Man to Death, Family Says', Human Rights Watch (HRW), 06 October 2020

    [22] ‘World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.177-178; 'Human Rights in the Middle East and North Africa: Review of 2019', Amnesty International, 18 February 2020, pp.19-20

    [23] 'Human Rights in the Middle East and North Africa: Review of 2019', Amnesty International, 18 February 2020, p.20

    [24] 'Egypt: Apparent Covid-19 Outbreaks in Prisons', Human Rights Watch (HRW), 20 July 2020; 'Mohamed Monir’s death of COVID-19 is a warning sign for journalists held in Egypt’s prisons', Committee to Protect Journalists (CPJ), New York, 06 August 2020; and ‘Imprisoned rights defenders in Egypt at ‘grave risk’ of COVID‑19, warn UN experts', UN News, 24 August 2020

16. Based on such country information, the Tribunal considers the applicant faces more than a remote chance of serious harm from the authorities whilst imprisoned for several charges, including defaming Islam and forced conversion of a Muslim woman and her daughters which would not be viewed favourably by prison guards and the authorities in general. In such a context, and given country information about the poor and potentially life‑threatening prison conditions, and in some instances ill-treatment of detainees, the Tribunal accepts the applicant faces a real chance of serious harm from the authorities whilst imprisoned as a Christian who has been charged with religious-related crimes.

17. In making this assessment, the Tribunal has taken the applicant’s personal vulnerabilities and attributes into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts he was subject to threats and physical violence by groups of Muslim men in Egypt in the past; and subject to threats and insulting comments made by police due to his Christian faith; and was mistreated during his eight days in custody on remand. It accepts he is psychologically vulnerable due to these past experiences. Further, it accepts due to these threats, he had to sell his property at a much-reduced price, whilst another apartment (in Alexandria) remains locked and he has no one there he can trust to sell it or rent it out. At hearing, he was clearly upset when discussing these matters. The applicant is currently [age] years of age and has some health issues, including [a condition].

18. Taking into account these particular vulnerabilities and personal attributes, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience in prison could amount to serious harm as contemplated in the Act, given his vulnerability and previous experiences of being threatened and harmed.

19. Therefore, having regard to the applicant’s particular circumstances, and given these considerations and taking into account the above country information, the Tribunal finds that if the applicant were to return to Egypt in the reasonably foreseeable future, he faces a real chance of serious harm from the authorities as a Christian subject to a term of imprisonment including for offences of defaming Islam as per s 91R(1)(b). The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s Christian religion as per s 91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s 91R(1)(c).

20. The Tribunal has gone on to consider if state protection is available to the applicant. In her submission the representative argues that it is not, given the Egyptian authorities (government, police, and security forces) include extremists who may hold anti‑Christian views and have been unwilling or unable to protect Egyptian Christians from violence, much of it motivated by religious and political differences. Reference is made to other (differently constituted) Tribunal decisions, which found that Christians in Egypt cannot receive state protection, as well as country information about the shortcomings by the authorities to provide state protection to religious minorities, including Coptic Christians.

21. Given the harm feared by the applicant is from the authorities themselves (or elements within the authorities), and country information that the Sisi government’s purported support for Copts has not filtered down to a bureaucratic, judicial and local government level,[25] the Tribunal finds that the level of protection available to the applicant from the Egyptian authorities does not meet the level of protection which citizens are entitled to expect, as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

    [25] ‘Christians in Egypt face unprecedented persecution, report says’, The Guardian, 11 January 2018; ‘General Briefing: Egypt’, Christian Solidarity Worldwide, 1 May 2020

22. The Tribunal also finds that relocation to avoid the harm the applicant fears in his home area is not a safe option given the authorities exist nationally.

23. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution from the authorities if he returns to Egypt in the reasonably foreseeable future, as a Christian who is subject of a [term] prison sentence for religious-related charges. 

24. Given these findings, it is not necessary for the Tribunal to consider the other grounds and matters advanced.

    CONCLUSION

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

26. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However the Tribunal is satisfied that the second named applicant is the wife of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

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

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

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

    Nicole Burns
    Member