1703251 (Refugee)

1703251 (Refugee) [2018] AATA 4868 (12 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703251
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Christopher Smolicz
DATE:12 December 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 December 2018 at 2:34pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian – social work with the church – helped young Musim women – fears sectarian violence – fear of harm from Islamic extremists –psychological and physical abuse – sexual assault victim – societal discrimination – relocation unreasonable – mental health issues – PTSD and depression – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Egypt, applied for the visa on 7 August 2015.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because of her Coptic Orthodox Christian religious beliefs.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant is [an age] year old married woman born in Alexandria, Egypt. She arrived in Australia on [date] May 2015 as the holder of a [temporary] visa which was valid until 24 August 2015. The applicant travelled to Australia to visit her son ([Mr A]) and daughter ([Ms B]) who are both [in] Australia. The applicant’s husband [has] remained in Egypt.
Summary of claims
The applicant is a Coptic Orthodox Christian who fears harm from Muslim fanatics such as Salafist and the Muslim Brotherhood.
Her father was killed by Muslim fanatics in Alexandria in March 2011 during the revolution. She claims her father was killed because he was a business man who was well known for his religious activities supporting disadvantaged Copts. The applicant claims she observed her father’s killers run away after she heard the sound of gun shots.
The applicant said she worked as a [occupation] in a church-owned [organisation] in Assiut (Asyut), Southern Egypt. She also undertook a range of volunteer work with her local church [such] as guidance and teaching young Christian girls the fundamentals of their religion, helping them socially and financially. She described her role as a Servant of the Brothers of God. She has been working in this role since she was [age] years old. In order to work in this role she was trained by more senior church workers. She was required to have a thorough knowledge of the bible.
Members of church congregation would make donations to help the Coptic community because the government would provide no assistance to the poor. She was also part of a church committee who decided on what donations should be given to poor Coptic families who were in need. She would meet weekly with senior church people who developed the weekly curriculum for the girls. The church and the associated activities were managed by [Father C] and other members of the church. [Father C] provided a reference in support of the applicant’s claims for protection.
Part of the applicant’s volunteer work was also to care for young women who attended regular meetings with her. Many of the young women came from poor uneducated families who lived in the outskirts of the Asyut.
By way of example the applicant said she helped an [age] year old Christian woman called [Ms D]. In December 2013 [Ms D] stopped attending the church meetings. If a woman did not present for an extended period she would make a point to visit them at their home to find out what was happening.
She became aware that [Ms D] was being subjected to harassment by her Muslim employer who was making attempts to convert her to Islam with promises of marriage and money to help support her family. The applicant intervened and convinced [Ms D] not to convert and promised to help her find employment and provide financial assistance to her family. [Ms D] was able to return to the church and she saved her from the Islamic fanatics who wanted to convert her to Islam and marry her off to a Muslim male.
The Tribunal finds that the applicant’s evidence is consistent with country information which confirms that there are reports of Christian women and girls being abducted and forcibly converted to Islam.[1]
[1] DFAT Country Information Report, Egypt – 19 May 2017 [3.9]
It was submitted that as a consequence of her involvement in late December 2013 three veiled women came to her work and verbally abused her in front of her colleagues.
Further, on the same day when she was walking home she was attacked by three fanatic terrorists and was told to stay away from [Ms D] and other Christian girls. She received treatment for her injuries. The applicant provided a medical report in support of her evidence.
After the incident the fanatic terrorists kept making threatening telephone calls to the applicant and her husband.
The applicant subsequently sent her children to live with their uncle in Cairo.
On 15 February 2014 [Mr A] departed Egypt and travelled to Australia on a [temporary] visa.
In March 2014 the applicant helped [an age]-year-old Christian girl called [Ms E]. She saw [Ms E] bleeding in the street close to the church. [Ms E] was distressed because her brother has just been killed. The applicant brought [Ms E] inside the church and subsequently she and her husband took her to the nearest hospital. [Ms E] subsequently said that she was raped by four Islamist fanatics. The applicant was concerned for [Ms E]’s future and proposed to her parents to take her to their priest who took it upon himself to help [Ms E].
In April 2014 the applicant received a threatening letter from the fanatical terrorists blaming her and her husband for helping [Ms E], who they claimed had converted to Islam.
In May 2014 her daughter [Ms B] was attacked by two women who allegedly told her that she was attacked because of her mother.
In June 2014 her husband was attacked by a group of fanatic terrorists and his [business] was destroyed. In October 2014 her husband left Assiut for Cairo.
[In] February 2015 her daughter [Ms B] left Egypt for Australia on a [temporary] visa.
[In] April 2015 the applicant was at her residence with her mother when three bearded men pushed inside, attacking them. She was forced to sign a marriage contract between her and one of the men. She signed the contract and was sexually abused in front of her mother.
The next day she sought medical assistance and provided the Tribunal with a medical report in support of her claims. She did not report the assault to the police because she was embarrassed and thought the police would accuse her of making trouble. Subsequently she sold her apartment and escaped to Cairo with her mother.
She departed Egypt [in] May 2015 and travelled to Australia to be reunited with her children.
She fears sectarian violence in Egypt. She claims the Egyptian government was unable to protect her. She fears fanatic terrorists will kill her.
The applicant also claims her husband has not been in contact with her since May 2016. He has suffered psychological problems and is taking medication. He is unable to provide a statement in support of her claims. She believes that her husband has abandoned her and wants nothing to do with her because she was raped.
She claims that when she was in Egypt she supported many Muslims who asked to convert to Christianity and their families thought that she encouraged them to convert. The applicant expanded on this evidence at the hearing. She did not actively try to convert Muslims to Christianity but when Muslim [came] to [her workplace] and asked about Christianity she would provide them with pamphlets because it was part of her duty as a Christian. The applicant provided the Tribunal with examples of the pamphlets she would handout.
The applicant said that she also gave out bibles to about three or four girls. She claims that she was accused of acting as a missionary. One of the girls ([Ms F]) attended the church and would take of her hajib. [Ms F]’s uncle observed her at the church. He hit her and demanded that she tell him who was behind her conduct. [Ms F] told her uncle it was the applicant. The applicant claims that as a consequence she was threatened. She believes this may have been why she was targeted by the Salafist and raped. The Tribunal noted that she had not previously mentioned this evidence when she made her claim for protection. The applicant said that she provided details about her dealings with Muslim converts but did not specifically refer to the dealings with [Ms F].
The applicant has continued to undertake volunteer work for the Coptic Church in Australia.
The applicant submitted a report from [the] Senior Clinical Psychologist, dated [November] 2016. In his opinion the applicant’s profile is consistent with the experience of trauma that she claims to have suffered in Egypt.
The Tribunal was also provided with a report from [a] Counsellor, [Organisation 1]. According to the report the applicant has been attending monthly counselling sessions since November 2016. She expressed symptoms of high anxiety and depression, such as poor memory and concentration, social withdrawal and sleep disturbances because of the trauma she suffered in Egypt and the stress surrounding her husband’s disappearance.
The applicant has also been supported by [Organisation 1] [Psychiatrist]. She has been diagnosed with post-traumatic stress disorder (PTSD) and depression and is taking anti-depression [medication].
Country information
Department of Foreign Affairs and Trade (DFAT) country information confirms that religion is central to identity in Egypt. Orthodox Christians represent about eight to 10 per cent of the population (approximately 7–9 million). They are the largest religious minority in Egypt and the largest of the country’s 12 recognised Christian denominations.
DFAT assesses that discrimination faced by Christians in Egypt is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. However, some Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means. Christians are also less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities, despite the lack of any official policy of discrimination against them.[2]
[2] DFAT Country Information Report Egypt 19 May 2017 [3.33]
However, more recent country information indicates that once again Christians are being targeted and the authorities have been unable to effectively prevent or prosecute individuals involved in sectarian violence.
For example, in 2017 the Department’s thematic briefing reports that Islamic State in Egypt is increasingly targeting Coptic Christians. The most recent attack was against a convoy of vehicles carrying dozens of Copts on pilgrimage to St Samuel Monastery near Minya, south of Cairo. Islamic State claimed responsibility for the attack, in which militants, some wearing Egyptian military uniforms, stopped the convoy and killed 29 Copts after many refused to recite the shahada. In response, the Egyptian government launched airstrikes against militant training camps inside Libya, which it said were connected to the attack. The Department reports that in February 2017, Islamic State in Egypt released a video claiming responsibility for the December 2016 bombing in Cairo. The video, Fight All the Infidels, contained footage of the December 2016 attack and vowed to target Christians in Egypt. Also in February 2017, Islamic State in Egypt circulated a ‘hit list’ of 40 names in the town of El Arish in North Sinai. Eight Copts were killed in two weeks, causing hundreds of families to flee the area. In March 2017, Islamic State in Egypt set up checkpoints in North Sinai, stopping cars and requesting identification, saying they were looking for Christians.
The Department reports that there has been an increase in violence against Egyptian Copts since 2016, following a relative lull in 2014-15. Prior to the December 2016 Cairo bombing, most incidents were relatively small in scale and occurred in the province of Minya, approximately 200 km south of Cairo. Minya, which has a large Coptic population, high concentration of Islamist activists, high rate of poverty, and low rate of education, has been particularly notable as a location for communal tensions with 37 attacks recorded in the past three years. DFAT assesses that occasional incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular.
The 11 December 2016 bombing at the St Peter and St Paul Church, next to Cairo’s main Coptic Orthodox cathedral, marked an escalation in the scale of attacks. Twenty-nine people were killed and 49 injured. Many were women and children. Unusually for Egypt, the attack, for which Islamic State claimed responsibility, was carried out by a suicide bomber. In a statement, Islamic State warned of more attacks to come.
The 9 April 2017 dual bombings in Tanta and Alexandria show that Islamic State in Egypt has expanded its reach from the Sinai Peninsula and is able to launch simultaneous attacks in multiple cities. At least 27 people were killed and 78 injured when an Islamic State suicide bomber attacked a Palm Sunday service at St George’s Coptic Church in Tanta. Hours later, another Islamic State suicide bomber attacked St Mark’s Coptic Church in Alexandria, killing 17 people outside the church. Police stopped the Alexandria bomber from entering the church where the head of the Coptic Church, Pope Tawadros II, was attending Mass.
In relation to Christians generally in Egypt, the Tribunal notes that country information confirms there is discrimination at all levels of Egyptian society against Christians, and although discrimination on the basis of religion is prohibited under Egyptian law, there are reports that confirm that Coptic Christians continue to face official and societal discrimination and that this has been prevalent for decades. In its most recent country report DFAT states that as an overwhelmingly Sunni Muslim country, Egyptian law and long standing practices are generally designed to safeguard the Muslim majority.
Blasphemy laws
In assessing the country information the Tribunal has also considered the impact of Egypt’s blasphemy laws on the applicant, who claims to have provided assistance to members of the Muslim community converting to Christianity.
The United States Commission on International Religious Freedom (USCIRF) provides the following information about Egypt’s Blasphemy laws:
Article 98(f) of the Egyptian Penal Code prohibits citizens from “ridiculing or insulting heavenly religions or inciting sectarian strife.” Authorities use this “contempt-of-religion,” or blasphemy law to detain, prosecute and imprison members of religious groups whose practices deviate from mainstream Islamic beliefs or whose activities are alleged to jeopardize “communal harmony” or insult Judaism, Christianity or Islam.
Human Rights Watch noted that Egypt’s blasphemy laws curtail freedom of expression, which is guaranteed by the Egyptian Constitution.[3] Minority Rights Group International, in their 2016 Annual Report noted that Blasphemy accusations and related attacks remain a serious problem for Egypt's religious minorities, particularly Copts and Shi'a.
[3]>
The DFAT report of May 2017 provides the following information about Egypt’s Blasphemy/Defamation of Religion laws:
Before the 2011 Egyptian Revolution, defamation of religion cases were rare. The number and frequency of charges rose considerably under the Morsi government, and this trend has continued under the Sisi government. In January 2015, Sisi issued a decree permitting the government to ban any foreign publications deemed offensive to religion. Under the Sisi government, Article 98(f) has been used against an increasingly wide range of groups across the country, including atheists, Christians (including converts from Islam), and artists (see also ‘Atheists’). The increased use of social media has reportedly been a contributing factor in the rise of such cases, as more people have had visibility of potentially controversial material.
According to the US State Department, at least 20 individuals were prosecuted and eight individuals convicted in 2015 under Article 98(f). The exact numbers of those prosecuted in 2016 are unclear. However, some of the more high-profile recent arrests and prosecutions include… the sentencing of four Christian teenagers in Minya to between three and five years’ imprisonment in March 2016 for a video mocking an Islamic State execution that included a pre-beheading prayer.
DFAT understands that those accused of blasphemy rarely have an adequate right of defence and are generally convicted. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases. In June 2016, two Members of Parliament reportedly launched a movement to repeal Article 98(f) on the grounds that it violated the Constitution’s articles on freedom of belief and did not fit within sharia.

The 2017 UK Home Office report refers to the Eshhad and The Tahrir Institute for Middle East Policy in their article, ‘Eshhad Issue Brief: Egypt’s Blasphemy Laws’:
Some 41 per cent of blasphemy cases are filed against Christians, though they make up only about 10 percent of Egypt’s population. Such cases often rest on flimsy evidence, including Facebook posts. In one prominent case, Kirollos Shawky Atallah was convicted after liking a Facebook page that later posted anti-Islamic materials.....In another prominent case, a Coptic teacher in Luxor, Dimyana Obeid Abdel Nour, was charged in June 2013 with “denigrating Islam” after students accused her of insulting the Prophet Muhammad during a lesson. In June 2014, an appeals court upheld her six-month sentence, overturning an earlier ruling that only imposed a fine. In July 2015, three Christians were charged with “showing contempt for Islam” in Alexandria after distributing dates at sunset during Ramadan that had Bible verses on their packaging; their case was dropped in February [2016]. In September 2015, Maher Fayez, an 18-year-old student in Beni Suef, was accused of blasphemy for comments he made on Facebook that allegedly insulted Islam and spent three months in jail without being tried.
...While the state is the official judicial authority in Egypt, the tremendous influence of al-Azhar—the Sunni mosque and university establishment—allows its clerics to serve as unofficial enforcers of blasphemy laws. For example, in May 2015, television presenter Islam al-Beheiry was charged with blasphemy after the authorities at al-Azhar filed a complaint that his program “made people question what is certain in religion.” After nearly a year of trials and appeals, Beheiry was convicted in February 2016 and will serve one year in prison. In September 2015 al-Azhar officials demanded that several Cairo booksellers stop selling the “anti- Islamic” book ‘Blasphemy in Egypt’ and threatened to file charges of blasphemy if they did not comply.
...While under Sisi, who claims to protect Egypt’s minorities, officials’ statements have been more positive, the use of blasphemy charges continues unabated. There have been more charges of blasphemy under Sisi then there were under Morsi.
Some reports state that since Sisi took power in 2013 human rights conditions in Egypt continued to deteriorate. Human rights organisations found that around 60,000 people were imprisoned between 2013 and 2017 and the authorities had to build 10 additional prisons to accommodate the prisoners. It has been reported that since declaring a nationwide state of emergency in 2013 President Sisi has been granted extended powers to monitor and intercept all forms of communication and correspondence, impose censorship, confiscate extant publications, and impose curfews.[4]
State protection
[4] Egypt’s Emergency Law Explained, 11 April 2017, Aljazeera >
In light of the increase in sectarian violence targeting Coptic Christians it is also necessary for the Tribunal to consider the level of state protection available to Coptic Christians in Egypt.
DFAT’S 2017 Thematic Report on Egyptian Copts provides the following information on state protection:
In urban areas, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered to Copts by individual security officials. The level of police presence in rural and poorer areas is generally less than in the cities, and as a consequence Copts are less safe in these areas.
The Immigration and Refugee Board of Canada in a response ‘Egypt: Situation of Coptic Christians, including treatment; state protection available (2014-May 2015)’, citing a range of sources offers a less optimistic assessment than that provided in the DFAT’s Thematic brief:
In its 2015 annual report, Amnesty International (AI) states that Egyptian authorities “failed to tackle discrimination against religious minorities, including Coptic Christians” (AI 2015). According to CSW, there are “longstanding allegations that the authorities have failed to provide sufficient protection” for the Coptic community and that “inadequate police response has engendered a climate of impunity” (CSW 26 September 2014). Human Rights Watch indicates that, “in many cases, authorities failed to intervene” in attacks on Christian establishments (29 January 2015). According to the Assistant Professor, there have been complaints by Copts that the police are slow to respond, and “cannot be relied upon to protect Copts in situations of targeted violence” (Assistant Professor 14 April 2015). The Assistant Professor indicated that, “[m]ostly, the perpetrators do not get prosecuted because the government opts for conciliation meetings and the charges are dropped or not pursued” (ibid.). The same source indicated that “in almost all cases” victims must drop charges against those who damaged their properties or assaulted them in order to “'buy peace'” and sometimes people also choose to leave the area, usually moving to cities (ibid.).
In 2017 Amnesty International reports that religious minorities, ‘including Coptic Christians…, continued to face discriminatory restrictions in law and practice and inadequate protection from violence’.[5]
[5] Amnesty International, 22 Feb. 2017, 149
In 2015 the US International Religious Freedom Report made the following comments on ability of the Egyptian authorities to provide state protection to minority religious groups:
The government frequently failed to prevent, investigate or prosecute crimes targeting members of religious minority groups, which fostered a climate of impunity, according to a prominent local rights organisation. The government often failed to protect Christians targeted by kidnappings and extortion according to sources in the Christian community, and there were reports that security and police officials sometimes failed to respond to these crimes, especially in Upper Egypt.[6]
[6] United States, Bureau of Democracy, Human Rights and Labor, International Religious Freedom Report for 2015 >
According to the 2016 United States Commission on International Religious Freedom (USCIRF) Annual Report:
During the past year, the government’s efforts to combat extremism and terrorism have had a chilling impact on human rights and civil society activities in the country.
Against a backdrop of deteriorating human rights conditions, the Egyptian Government has taken positive steps to address some religious freedom concerns, including intolerance in religious curricula and extremism in religious discourse. In addition, President Abdel Fattah al-Sisi continued to make public statements encouraging religious tolerance and moderation... There were notably fewer sectarian attacks against Christians and other religious minorities, and investigations and prosecutions continued for the unprecedented scale of destruction of churches and Christian property that occurred in the summer of 2013. However, other past large-scale sectarian incidents have not resulted in prosecutions, which continued to foster a climate of impunity.
In addition, the longstanding discriminatory and repressive laws and policies that restrict freedom of thought, conscience, and religion or belief remain in place. During [2015], there was an increase in Egyptian Courts prosecuting, convicting, and imprisoning Egyptian citizens for blasphemy and related charges. While the 2014 constitution includes improvements regarding freedom of religion or belief, the interpretation and implementation of relevant provisions remain to be seen, since the newly seated parliament has yet to act on the provisions. Based on these ongoing concerns, for the sixth year in a row, USCIRF recommends in 2016 that Egypt be designated a “country of particular concern,” or CPC, under the International Religious Freedom Act (IRFA). USCIRF will continue to monitor the situation closely to determine if positive developments warrant a change in Egypt's status during the year ahead.[7]
[7] United States Commission on International Religious Freedom (USCIRF) 2016 Annual Report: Egypt, Key Findings, April 2016, 2016 Annual Report.pdf Accessed 19 Oct 2016
On 20 May 2015, a Senior Fellow at the Hudson Institute’s Centre for Religious Freedom, Samuel Tadros, gave testimony before the United States government’s House Committee on Foreign Affairs:
…Failure by the Sisi regime to uphold the rule of law and protect the country’s Christians from attack bodes ill for the Middle East’s largest Christian community. While the Egyptian regime believes that its resort to reconciliation sessions instead of punishing the attackers helps in restoring and maintaining order, the reality is the exact opposite. The lack of punishment has created a culture of impunity, which in turn has become a culture of encouragement. Fanatics have rightly concluded that attacking Copts, not only will go unpunished, but more importantly will result in the mob’s demands being met. The Egyptian regime needs to offer better protection of its most vulnerable citizens preventing the attacks from taking place, and enforce the rule of law by bringing attackers to justice. The Egyptian regime needs to understand that protecting religious minorities is not a luxurious act to be done after serious security threats are dealt with or that punishing those attacking them can wait until stability and security is restored. Those attacking Copts share the same hatreds that fuels the terrorists and no stability or security can be achieved if criminals are not punished. Likewise, blasphemy accusations should not be used as a means to terrorize religious minorities.[8]
Does the applicant have a well-founded fear of persecution for a convention reason?
[8] Tadros, S 2015, ‘Egypt Two Years After Morsi Part 1’, Hudson Institute’s Center for Religious Freedom, 20 May
The Tribunal finds that the applicant is a Coptic Orthodox Christian born in Egypt. The Tribunal accepts that the applicant is a national of Egypt and assessed her claims against Egypt for the purposes of s.36(2)(a).
One of the fundamental principles of protection claims assessment is that applicants ought to be given the benefit of the doubt. The UNHCR Handbook states:[9]
After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. […] It is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
[9] UNHCR Handbook, paragraph 203
The Tribunal finds that the applicant presented as a shy and withdrawn witness who did not seek to embellish her claims. The Tribunal has had regard to the expert reports of [the] Senior Clinical Psychologist, and [Counsellor] ([Organisation 1]) and accepts the applicant has been the victim of a targeted sexual assault in Egypt. The Tribunal accepts that the applicant is currently being treated by [a psychiatrist] and has been diagnosed with PTSD.
The Tribunal accepts that the applicant is an educated person who was an active pastoral worker in her Christian community. The Tribunal finds that the applicant’s pastoral work combined with her professional role [brought] her to the adverse attention of the Muslim extremists in Egypt. The Tribunal has had regard to the applicant’s profile and accepts that she will continue her pastoral work if she returns to Egypt in the reasonably foreseeable future.
The Tribunal finds that in assessing the applicant’s claims it is necessary to have regard to the religious persecution in Egypt. Country information confirms that sectarian violence and lack of protection for religious minorities has continued in Egypt since President Morsi of the Muslim Brotherhood was elected to power in June 2012. Numerous Coptic Churches were burned and damaged in an upsurge in Islamic violence against Coptic Christians. In July 2013 the army intervened to remove Morsi from power. Since the July 2013 military intervention the authorities have initiated criminal proceedings against senior Muslim Brotherhood figures in relation to the deaths of protestors during the Morsi Government.
Against this background, the Tribunal must assess the applicant’s claims looking to the reasonably foreseeable future having regard to the current country information detailed above.
The Tribunal finds that despite President Sisi declaring a nationwide state of emergency in April 2017, sectarian violence targeting Coptic Orthodox Christians has been on the increase in Egypt. The Tribunal finds that the attacks are religiously motivated and have continued despite the assurance of the Egyptian state’s willingness to protect Copts against attacks by radical non-Christian elements and despite legal guarantees expressed in the Egyptian Constitution.
The Tribunal finds that the harm feared by the applicant is from Islamic extremist groups because she is an active member of the Coptic Orthodox Christian church in Egypt. Despite the election of a new president in May 2014 and the crackdown on the Muslim Brotherhood, the evidence before the Tribunal does not indicate that the situation in relation to state protection for Coptic Christians has changed. The Tribunal finds that the applicant may be subject to charges brought under Egypt’s Blasphemy laws. The Tribunal has had regard to country information and finds that the Blasphemy laws disproportionally impact on religious Christian Copts in Egypt. The Tribunal is satisfied the persecution feared by the applicant is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment.
The country reports and recent developments in Egypt indicate that while a state of emergency had up to now contained sectarian violence, these disturbing recent events indicate to the Tribunal that sectarian violence still occurs and there has been no appreciable change in the treatment of Coptic Christians. The Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by non-state actors as well as by the state if she returned to Egypt, now or in the foreseeable future.
The Tribunal finds that the persecution faced by the applicant is heightened by the fact she will be returning to Egypt as a single woman with a mental illness without the support of her husband. Country information confirms that Christian women married to Christian men are only able to access divorce if their partner converts to another religion or is unfaithful, which results in many women being unable to leave abusive relationships. DFAT assesses that the majority of Egyptian women, regardless of religion and socio-economic level, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and workforce. DFAT assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence.[10]
[10] DFAT Country Information Report, Egypt – 19 May 2017 [3.71] and [3.79]
Accordingly, the Tribunal finds that it would not be reasonable for the applicant to relocate as the discrimination against Christians is pervasive across Egypt, and in view of the applicant’s experiences prior to leaving Egypt, the Tribunal finds that she will not be safe nor will she be protected by the state.
Having regard to the applicant’s profile as a single educated Coptic Christian woman, who is active in her church and community, and has come to the attention of Islamic extremists, there is a real chance that the applicant is at risk of serious harm if she returns to Egypt now or in the reasonably foreseeable future. The Tribunal finds that applicant’s fear of persecution because of her religious beliefs is well-founded.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4868

12 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness