1707034 (Refugee) - [2021] AATA 3252

1707034 (Refugee) [2021] AATA 3252 (21 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707034
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Gabrielle Cullen
DATE:21 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 21 June 2021 at 10:18am
CATCHWORDS
REFUGEE – protection Visa – Egypt –religion – Coptic Christian – harassed and assaulted – Muslim Brotherhood – health conditions – mental and physical incapacities – effective protection measures not available to applicant –– decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Chan Yee Kin v MIEA (1989) 169 CLR 379
Ram v MIEA (1995) 57 FCR 565
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143
SZTEQ v MIBP (2015) 229 FCR 497
VBAO v MIMIA (2006) 233 CLR 1
VSAI v MIMIA [2004] FCA 1602
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 and Border Protection on 23 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant is an [age]-year-old male citizen of Egypt and his wife is a [age-year]-old female citizen of Egypt. The applicants claim to fear return from Muslim extremists as they are Coptic Christians.
The applicants arrived in Australia on [date] January 2016 on Subclass 600 tourist visas granted on 12 November 2015 to visit their three sons, who are Australian citizens. They previously visited Australia on tourist visas from [July] 2000 to [January] 2001, [January] 2004 to [March] 2004 and from [April] 2013 to [June] 2013[1]. The applicants visited [Country 1] for tourism purposes in 2010/2011 and 2014. The applicants applied for protection visas on 24 February 2016.
[1] While it is not on the Movement Record the applicant has provided evidence at hearing and by way of passport stamps evidencing his visit to Australia at this time. The applicant’s son also indicated he visited Australia in 2013.
On 18 July 2016 the first named applicant (the applicant) was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
On 23 March 2017 the delegate refused to grant the visas. While the delegate accepted that the applicants moved from their home in Sohag, Upper Egypt to Cairo in 2013, she found they only faced low-level harassment and threats from members of the Muslim Brotherhood and that the first named applicant’s account of the alleged threats and harassment in Giza was vague and inconsistent. She was also concerned as to the three-month delay in applying for the visitor visa, following the refusal of the first application and their delay in departing once their visitor visas were granted on 12 November 2015.
The applicants applied for review of the Department decision on 3 April 2017 and attached the decision of the Department.
The applicant appeared before the Tribunal on 15 June 2021 to give evidence and present arguments. The applicant was assisted with an interpreter in the Arab/Egyptian and English languages. The second named applicant did not attend the hearing due to medical issues. The applicant’s son, Mr [A], initially appeared as a support person but did provide evidence. The applicants’ representative attended the hearing.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Egypt and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria are outlined in an attachment at the end of this decision.
CONSIDERATIONS OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicants’ protection visa applications of 24 February 2016, and statutory declaration of the applicant dated 22 February 2016 as well as identity documents.
·Oral evidence of the applicant provided at the Department interview held on 18 July 2016 and of the applicant at the Tribunal hearing held on 15 June 2021, as well as the applicants’ son.
·Submission from the applicants’ representative dated 29 July 2016, explaining the reasons for the applicants’ delay in lodging visitor visa applications after their first application was refused, their delay in lodging protection visa applications after their arrival in Australia and the applicant’s age as a factor in his recollection of past events at the Department interview, noting he was [age] at the time of the interview. She also provided evidence via passport stamps of the applicants’ last visit to Australia in 2013.
·Country information submitted to the Department as follows:
o   Article dated 29 July 2016 titled “Blast at police headquarters in Cairo kills at least four” in the
o   Article dated 24 January 2014 titled “Al Qaeda group claims responsibility for Cairo bombings” by The National Staff.
o   Article dated 22 March 2014 titled “Anti-coup demonstrators rally in Egypt – Thousands of protestors stage fresh rallies in Cairo for a third straight day as part of an 11 day anti-coup campaign” by Aljazeera.
o   Article titled “Anti-government demonstrators rally in Egypt: 169 arrested, 4 dead” by CNN Egypt Independent Ahram Online.
·Statutory Declaration by [Mr B] dated 2 April 2021 as follows:
1.     I was the one who was assisting my mum and dad with their visitor visa applications.
2.     After the first refusal, I was advised by a Migration Agent to wait before lodging another application as lodgment right after the refusal would not be beneficial and most likely result in another refusal.
3.     When they arrived, they were in very bad medical and psychological condition and they needed immediate medical attention.
4.     My dad suffers from [various medical conditions].
5.     Mum suffers from [various medical conditions].
Due to their bad health, they cannot return to Egypt and live independently, as they suffered great psychological trauma and their physical and health conditions does not deem them fit to live alone.
·Statutory Declaration of [Mr C] dated 16 April 2021 declaring that he has moved from Melbourne to Sydney to help his parents as their health issues have deteriorated recently and they need more care than his two brothers can tolerate alone. He submits that they are unable to live independently.
·Statutory Declaration by [Mr A] dated 19 April 2021 noting that he has the main responsibility for the care of his parents, as they cannot live independently or return to Egypt.
·Report from [a] Specialist Geriatrician dated 9 April 2021 who outlines the applicant’s medical history and notes the following:
[The applicant, Mr D,] was accompanied by his son [Mr A] today. He currently lives at home with his wife, and has 3 supportive sons. He is a man of Egyptian origin, who migrated here approximately 5 years ago. His son states that [Mr D] has had some slow progressive cognitive decline, especially after his [body part] replacement last year. [Mr D] can be very repetitive in conversations, and occasionally has poor short term memory, not remembering conversations. His long term memory remains intact. [Mr D] also gets anxious when he is unable to comprehend certain conversations. Stating this, he generally sleeps well. There has been no history of aggression. There has been no hallucinations or delusions.
[Mr D] currently mobilises with walking stick. He has not had recent falls. His sons assist with domestic duties, as well as shopping and transport. He is a retired [occupation] from Egypt. He is currently continent of urine and faeces. He stopped smoking 40 years ago, and rarely drinks alcohol.
In terms of other issues, [Mr D] has had recent blood tests, with well controlled cholesterol levels, and Hba1c shows well controlled glycemic index. He is compliant with his medication with the assistance of his sons.
On examination today, he had an alert and reactive mood. Blood Pressure was 125/70 mmHg with no postural drop. Heart sounds were dual. Motor power in the lower limbs and upper limbs was 5/5 throughout. There was no evidence of Parkinsons disease.
Impression:
[Mr D] is a [age]-year-old man of Egyptian origin from home who has active management issue of cognitive decline. Based on today’s assessment, he likely has mild cognitive impairment of amnestic type, with mild anxiety.
My recommendations:
I would recommend that he has a MRI brain , which will assist us with assessment of his cognitive decline.
I have emphasised the importance of exercise and social interaction
I have let [Mr A] know regarding the use of [medicine], which may assist with cognitive decline.
Please check his TSH levels
I will review him after his MRI brain.
·The applicant’s Patient Health Summary obtained from his [GP], dated 16 April 2021. It notes the following:

[Past history deleted]

·Report from [a named doctor] dated 15 April 2021 noting the second named applicant has significant [disease]. He notes the following:
She has recently been [hospitalised]. I would recommend against any situation that would place her under significant stress and anxiety which could precipitate worsening of her symptoms.
·Second named applicant’s Discharge Summary from [a named] Hospital dated 2 February 2021 following the second named applicant’s [body part] replacement.
·Email from the applicant’s representative dated 11 June 2021 including the above and noting the following:
As the attached medical reports indicate, both Applicants are suffering from acute medical conditions.
Mrs. [E]
Mrs. [E] had an [operation] in February 2017.
1.     In March 2021, Mrs. [E] was admitted to [a] Hospital for [medical conditions].
2.     Due to her medical, Mrs. [E] is unable to attend the hearing.
Mr. [D]
Mr. [D] had a [body part] replacement in January 2021.
Mr. [D] is suffering from early Dementia disease, affecting his short term memory and concentration. This greatly disadvantaged him in the Departmental interview, as he could not recall correct dates or the timeline of events. We are instructed that this condition is deteriorating to the extent of him forgetting to take his medications, forgetting house keys and forgetting the stove and oven on, placing him at high risk.
We kindly ask that the Tribunal take Mr [D]'s medical condition into consideration during the hearing.
We also wish to bring to the Tribunal's attention, Mr [D]’s Statutory Declaration dated 22 February 2016, which was submitted to the Department with the initial protection application. We attach it to this email for ease of reference. In the Declaration, we have identified errors in translation and dates for the following points:
1.     In point number 50 – It reads “ A week Later, we heard….”. This should have been translated as “A while later”
2.     In point 71 – It reads “ I visited Australia three times before in July 2000, January 2004 and February 2012.” The final date should be April 2013 instead of February 2012.
·DFAT Country Information Report Egypt dated 17 June 2019.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

Is the applicant credible as to his claims?
The applicant’s claims

In a statutory declaration dated 22 February 2016 attached to the application for a protection visa the applicant makes the following summarised claims:
·The applicants lived in an apartment in Sohag, Upper Egypt very close to [Church 1] .
·The applicant has, since 1964, served [Church 1], cleaning the church, regularly attending mass and praying, collecting donations for poor people and distributing them, and being a board member of the [a group] run under the [Diocese] and the Bishop’s supervision. He notes he was a member of the board which serves homeless children and provides them with education and other needs.
·He suffered discrimination and mistreatment in Egypt because of his [name]. As to the mistreatment, he refers to being ignored several times for promotion, and not obtaining some of his earnings and financial rights. He refers to two incidents where he was deprived a promotion because of his religion. He claims he was sent to [Country 2] as no Muslim would go there. He claims any promotions or salary rises were unfairly distributed and he was deprived of his rights.
·He adds that after the first Egyptian revolution he received many threats through letters, phone calls and writing on the wall of the buildings. He reported these incidents to the police but they did not do anything.
·He claims extremist Muslims threatened him, telling him to leave his apartment or leave the country because of his [given name] and his [surname].
·His wife was exposed to humiliation because she is also a Christian and not wearing a veil. He refers to her hair being pulled, being spat on and thrown with stones. He claims that once they pulled the gold cross of her neck, both hurting her and humiliating her. No one dared help even though she was alone.
·He claims these incidents increased after the Muslim Brotherhood reached power and authority. One day there was screaming in the street and they saw the Muslim brotherhood throw bottles at the church and at their home. He notes the Church was burnt down as well as many stores.
·He claims they were threatened and told to leave their apartment, and they placed a red mark on their building. He claims they threatened that they would burn the apartment and them inside if they did not leave.
·He claims as he was [age] and his wife was [age], he could not handle all the persecution and fear and they could not defend themselves.
·He claims they told the police they were threatened and told to leave but the police said they were not getting involved.
·He refers to the general persecution and bombing of Christians at the time.
·He claims he and his wife were attacked several times even though they were aged people.
·He has three sons and the middle son was working in [specified workplace] at the time, living [in] Giza.
·He claims their son, [Mr C] knew what happened in Sohag, so he rented them an apartment [close] to where he lived with his family. He said this was at [address deleted]. He claims he was shocked to find that all of the building’s residents were harmed by Muslim Brotherhood and Salafists who hated Christians. He said they considered them as infidels and were upset his wife was not veiled.
·He refers to an incident when they were returning back to their apartment and protesters were gathering in the street and they lit a fire and burned the council building. He claims they rushed to their apartment but could not enter as there were four people with their faces covered who were carrying guns and they physically assaulted them. He claims they pushed his wife, called her Kafra, and assaulted both of them. He claims people intervened when they heard them screaming, otherwise they would have been killed.
·He claims a week later they heard a loud explosion and later learned they had bombed the police station, [El-Talbeya]. He claims many police officers were killed and injured.
·He claims the following day they started another protest from a mosque called Khatem El-Morsallen in El-Hamra and they destroyed everything on their way and when they reached the Renaissance cinema they bombed and destroyed it.
·He claims they used to insult Christians, assault them and throw Molotov cocktails.
·He claims [Mr C] left Egypt in 2015 and their suffering increased.
·He claims they were threatened, attacked and physically assaulted and they wanted them to leave the apartment many times. He claims one time they threw a Molotov cocktail on their balcony as they were living on the first floor.
·He refers to being attacked by four men while they were going to catch the microbus to the church in Giza. He claims they were physically assaulted by Salafists who had their faces covered.
·He claims they were forced to stay inside their apartment after all the humiliation and insult. They stopped going to church, practising their religion and going to doctors’ appointments.
·They could not return to Sohag even though the apartment is legally leased to them. They were told not to return to Sohag as it was becoming more violent for Christians. He claims only large Christian families were able to protect themselves.
·He claims they can no longer bear the insults, humiliation and threats anymore and referred to their age.
·He notes that his three sons knew they had to get them out of Egypt for their health and well-being and so they bought them to Australia.
·He placed the Sohag address on the visitor visa application as this is their formal address in their passport and formal postal and residential address.
·He has visited Australia on three occasions and never thought about staying until faced with persecution in Egypt.
At the Department interview held on 18 July 2016 the applicant reiterated the applicants’ claim to fear return as Coptic Christians. The applicant said that they received threats in Sohag, and they were 'beaten in the streets.' When asked to specify the incidents, the applicant responded 'All I can say is that we were beaten...' by Muslim Brotherhood (MB) members and Salafists more than once, and his wife once had her necklace with a cross ripped from her neck, and this started from around the beginning of August 2013 until 20 August 2013 when they moved to Cairo. He said that during the uprising there were several demonstrations, and at the end of his street there was a church. He said the protesters 'attacked' the street, burned down the church, and burned the houses of Christians around him and referred to threats of harm against them. The applicant said that while living in Sohag in August 2013, he began to receive threats over the telephone and in letters, and anti-Christian 'threatening remarks' were written at the entrance of his apartment building. He said that one of their sons lived in Egypt at the time, and he moved the applicants to a rented apartment in Giza in August 2013.
Once in Giza, the applicant said he realised that the area was heavily populated with Muslim Brotherhood members and Salafists. He said they learned from the applicants’ landlord that he was Christian, and the threats were ‘exacerbated’. He said soon after they arrived in Giza, the applicant heard shots being fired, and the sound of bombs, and he was surprised as 'we thought that in Cairo the situation is calm, there are no issues.' He said they had to run into their building as they witnessed a demonstration where the protesters repeated the phrase 'Leave this place, you infidels', and he saw that the Giza governorate building was on fire. The applicant then said that they were harassed and hit with sticks when they were returning to their apartment but some people from their building helped to escort them inside their apartment, and they then remained locked inside without 'any food or water' for around three days. The applicants said they lived in 'fear and torment' as protests continued.

The applicant was asked if he visited a hospital at this time. In response he stated that he called [a] doctor who visited them at their home, as their son had already departed for Australia.
In the second incident, the applicant claimed that they 'went down after that time to go to the church' by microbus at the end of their street. Demonstrations were ongoing at the time, and the applicants walked from their apartment to a microbus, [when] the applicants were chased by some Muslim Brotherhood and Salafist members until they fell from the microbus. When asked to describe the incident at a different stage of the interview, the applicant then said in late September or early October 2015, they were about to board the bus they were pulled out and beaten by Muslim Brotherhood and Salafist members, and people who worked nearby in shops came to assist the applicants and they returned to their apartment. After this incident, the applicants were unable to travel to the church and were restricted from leaving their apartment.
At interview the applicant was asked why he thought he was targeted amongst Cairo's Christian population, and he replied that he was not the only one being targeted, 'most Christians are targeted (and) I'm one of those Christians.'
The applicant was asked if he sought police assistance during the incidents, and he claimed that he attempted to approach a police station close to his apartment, however, it had burned down and officers said they were unable to protect him. He was asked why he did not seek help from a different police station in Cairo, and he responded that he did not know the location of other stations, and he had been informed before that the police closest to him were unable to provide assistance.
The applicant was also questioned as to why he did not seek protection when he travelled to [Country 1] for three months in June 2014, and he responded that he only decided to apply for protection towards the second half of 2015. He was asked as to the delay in reapplying for a visitor visa and delay in departure once the visitor visa was granted.
At the Tribunal hearing held on 7 June 2021 the applicant reiterated his claim to fear return as he is a Coptic Christian. He confirmed he visited Australia from April 2013 to [June] 2013. He said he had lived in Sohag his whole life until he left in August 2013 due to the violence. He said he owned no home there as he rented. He said he also rented an apartment when he moved to Giza in August 2013 with the help of his second son. He said he did not own any property in Egypt.
As to whether he had any family in Egypt, he said he had no siblings or children as his children are all Australian citizens . He said there was no one they could live with or who could care for them if they returned.
He reiterated the medical conditions he and his wife suffered from as noted above in the medical reports. The Tribunal noted he was currently using a Zimmer frame to walk, and he said this was because of his [body part] reconstruction and he is to have another one. The applicant’s son said the surgeon had said he may require the Zimmer frame long term due to the imbalance and concerns that he may fall. He said his wife’s mobility is also very limited, and she is due to have operations soon.
As to their living arrangements in Australia, he said they live alone close to their son, [Mr A], who visits twice a day and brings them groceries. [Mr A]’s wife often cooks for them. His son indicated that he visits them in the morning and afternoon to bring them groceries and to ensure they take their medication. He indicated they often forget to do this. As to whether they cook for themselves, the applicant said he does not and his wife not really, but his son’s wife brings food.
As to why he fears return to Egypt, he referred to the difficulties faced at the hands of the Muslims and Salafists as they are Christian Copts. He referred to living near the [Church] in Suhag which was burned down and the difficulties he faced in Suhag and Giza as a Coptic Christian.
As to why he returned to Egypt from Australia in June 2013, he said the situation deteriorated in August 2013 when the local Church in Sohag was burned down and Christians were beaten. He said his son then organised for them to be moved away.
The Tribunal raised with the applicant independent information as to the steps taken by the Sisi government to ensure Coptic Christians are protected and he said it is not the government who are persecuting Christians and while it is true the Sisi government have arrested the big players, everywhere from Alexandria to Aswan there are people who are indoctrinated in schools and departments who are fundamentalists. He said still today Christians are being killed.
The Tribunal raised as of concern their delayed departure, when the visitor visa was granted on 12 November 2015, but they did not arrive in Australia until [January] 2016. The applicant’s son said this was because there is no online ticketing available, their parents were in their house and they could not book and organise it for themselves. He said all the family are in Sydney, so it took some time to organise.
The applicant referred to his vulnerabilities returning to Egypt as a Coptic Christian. He said he is [age] and frail and if someone taunts or gently pushes him, he will fall over and be harmed. He said he would rathe die in Australia than return to Egypt.
The applicant’s representative referred to the applicant’s medical conditions and fragility and submitted that they would not be able to withstand the smallest of difficulties. She referred to the country information as to harassment and that any pushing or shoving would result in harm to the applicants. She noted that there is no family in Egypt to take care of them. She noted that during their last period of stay in Egypt they were so scared that they stayed in their home, and their health deteriorated significantly and it is why they needed so much medical attention on arrival.
Assessment of the credibility of the applicant’s claims
The applicant answered questions over the course of the Department interview and Tribunal hearing with the detail expected of a person of his age and with his mental capacity, noting the medical evidence is that he has mild cognitive impairment. He was emotional as to the prospect of returning home and his fear appeared genuine. It found his evidence at the Department interview to be responsive to the questions asked. While the Tribunal is of the view that the applicant has exaggerated the difficulties faced once he moved with his wife to Giza in August 2013, it found his evidence as to the difficulties he faced in Sohag to be internally consistent and consistent with country information. The Tribunal also accepts both he and his wife suffer the mental and physical incapacities and difficulties claimed and that they are unable to live alone without significant support, currently being provided by their sons who are all Australia citizens.
Specifically, the Tribunal accepts as true the following:
·The applicants are Christian Copts who attend church regularly.
·They lived in Sohag in a rented apartment all their life until August 2013 when they moved to Giza, to be close to their son, [Mr C]. He travelled to Australia in approximately April 2015.
·They have no close family in Egypt as their three sons live in Australia, as citizens. There is no one in Egypt able to assist them or take care of them if they return to Egypt.
·They own no property in Egypt
·The applicants are [age] and [age] and face numerous physical and mental difficulties as outlined in the medial reports above and as described at hearing. They are extremely frail and vulnerable, requiring assistance from their three children to live alone. Their sons, especially [Mr A], shops for them, ensures they take their medication and their meals are mostly cooked by [Mr A]’s wife.
·The applicant faced discrimination in the workplace, with regard to promotion, work opportunities and wages as described in his statutory declaration as he is a Christian Copt. This is consistent with independent information outlined below as to discrimination faced by Christians in Egypt. He is now retired.
·While living in Sohag prior to and around August 2013 the applicants received threats through letters, phone calls and writings on the wall of the buildings, and they were told to leave the area as they are Christian Copts. His wife also had her necklace with a cross pulled from her neck.
·In Sohag they lived near the Mar Girgis Church, the head Church in the area and there were several protests and demonstration by the Muslim Brotherhood in the area. In August 2013 fundamentalists, including the Muslim Brotherhood, protested and threw fire and Molotov cocktails at the Church Mar Gigris Church which burnt down; they also targeted houses of Christians around them and their apartment which was close by. They were threatened and told that they must leave the apartment.
·In this regard the independent country information as outlined in the Department decision supports the applicant’s claims and indicates that Coptic Christian churches were targeted in the Sohag governorate in August 2013. Reports indicate that several areas in the Sohag governorate saw attacks on churches and Copts’ property.[2] According to the EIPR, 'hundreds of supporters of former president Mohamed Morsy assembled in front of the Mar Girgis Church, the seat of the Sohag, Maragha and al-Munshia bishopric, chanting hostile slogans against Christian symbols and Copts'.[3] Eyewitnesses reported that demonstrators pelted the church with stones after unsuccessfully attempting to storm the main closed gate.[4] In addition, an article on the AllAfrica.com website stated on 15 August 2013, 'Scores of Muslim Brotherhood members broke into the Coptic Orthodox Diocese in Sohag Wednesday (14 August 2013) following security forces' breakup of the two pro-Morsi protest camps at Rabaa Adaweya and Nanda squares. They threw Molotov bottles at the Mary Girgis Church inside the diocese, causing fires.' [5]
·The applicant was [age] and his wife was [age], and they could not handle it, so their son moved them to Giza, to live near him.
·While the applicants faced harassment and threats in Giza the applicant has exaggerated the difficulties suffered. In particular, the Tribunal does not accept his evidence that he saw the Giza governorate building on fire, and that following this they were targeted by Muslim Brotherhood members and Salafists when they returned to their apartment. The applicant initially claimed that this happened in 2013, and later claimed that it was around September 2015. The applicant also claimed at another time in interview that he faced threats in Sohag until they left on 20 August 2013, which indicated that he was not in Cairo during the Giza governorate building fire, which occurred on August 2013.
In this regard Al Arabiya noted on 15 August 2013:
Egypt's Giza governorate headquarters in Cairo was set on fire on Thursday with authorities blaming the Muslim Brotherhood... According to Al Arabiya correspondent in Cairo, assailants used Molotov bombs to burn down the building. The Muslim Brotherhood had called for nationwide rallies against a deadly crackdown on protesters Wednesday.'
In addition, Egypt Independent reported on 15 August 2013:
The Civil Protection Forces have managed to get a fire at the Giza governorate headquarters partially under control. Angered protesters had reportedly set the building ablaze on Thursday...
Violence erupted in different parts of Egypt Wednesday and Thursday after security forces dispersed sit-ins held by supporters of toppled President Mohamed Morsy. Violence was reported in the cities of Alexandria, Beni Suef, Fayoum, Assuit, Minya, and Suez, as government buildings, police facilities, and churches were the target of attacks.[6]
·The applicant’s delay in departure from the grant of their visitor visas on 12 November 2015 was as a result of the applicants’ lack of technological understanding and that their trip had to be organised by their sons who lived in Australia.
Do the applicants have a well-founded fear of persecution in relation to Egypt and meet the refugee protection provisions of the Act?
[2] Egyptian Initiative for Personal Rights 2013, Details of sectarian attacks documented by EIPR from 10 July to 11 August 2013, 25 August < Accessed 11 December 2013 <CX316384>
[3] Egyptian Initiative for Personal Rights, Details of sectarian attacks documented by EIPR from 10 July to 11 August 2013, 25 August 2013, < Accessed 11 December 2013 <CX316384>
[4] Egyptian Initiative for Personal Rights, Details of sectarian attacks documented by EIPR from 10 July to 11 August 2013, 25 August 2013, < Accessed 11 December 2013 <CX316384>
[5] Egyptian Initiative for Personal Rights, Details of sectarian attacks documented by EIPR from 10 July to 11 August 2013, 25 August 2013, < Accessed 11 December 2013 <CX316384>
[6] Al-Youm, A. "Fire at Giza governorate headquarters partially under control ", Egypt Independent, 15 August 2013, < Accessed 17 March 2017
The Tribunal has considered the situation for the applicants if they return to Egypt now or in the foreseeable future. For the reasons that follow, the Tribunal is satisfied that they have a profile which gives rise to a well-founded fear of persecution.
Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA.
In determining whether a person has a ‘well-founded fear of persecution’, s.5J(1)(a) contains a subjective requirement that an applicant holds a fear of being persecuted. Further, s.5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[7]
[7] Chan Yee Kin v MIEA (1989) 169 CLR 379
The Tribunal accepts on the evidence before it, as outlined above, that the applicants have a genuine fear of being persecuted in Egypt because of their religion, being Christian Copts. The Tribunal therefore finds that the applicants do have the subjective fear of being harmed for reasons of their religion as contemplated in s.5J(1)(a) of the Act.
Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s.5J(1)(a) must be the essential and significant reason for the persecution; it must involve serious harm; and must involve systematic and discriminatory conduct.
For the purposes of s.5J(4)(b) of the Act, s.5J(5) provides that the following types of harm are in the nature of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; (c) significant physical ill-treatment; (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.
The Tribunal accepts that the applicants faced the difficulties as claimed while living in Sohag. It accepts their local Church, which they lived close to, was burnt down in August 2013 by members of the Muslim Brotherhood, there were demonstrations and threats made against Copts. It accepts the Muslims Brotherhood and fundamentalists targeted houses of Christians around them and also the applicants’ apartment, which was close by. It accepts they were threatened and told that they must leave the apartment. It accepts the applicants received threats through letters, phone calls and writings on the wall of the buildings telling them to leave the area as they are Christian Copts. It accepts the second named applicant had her necklace with a cross pulled from her neck. It accepts as a result they moved to Giza in August 2013 in fear and while they did not face all the difficulties they claimed in Giza, they continued to be subjected to harassment and threats as they are Christian.
As to whether the applicants would face serious harm in Egypt because of their religion, DFAT’s most recent report on Egypt from 2019 provides the following general information in relation to Coptic Christians:
Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and in major cities such as Cairo and Alexandria. Suburbs in Cairo and other cities and some villages are sometimes regarded or described as ‘Christian areas’, but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.
3.32 Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely than Muslim women to leave their hair uncovered. Christian women living in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab. Christians tend to have identifiable names. Some Christians tattoo small crosses on the inside of their wrists or between their thumb and forefinger as a mark of their identity, often following visits to monasteries or holy sites. Not all Christians have these tattoos and it is not a mandatory religious practice.
3.33 There are no legal barriers to prevent Christians from being visible in public life, and a number of Christians have become prominent and influential in Egyptian politics and business. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be under-represented in senior civil servant roles, and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.
…
3.36 DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means …. Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities.

Human Rights Watch found in 2020 that Coptic Christians continue to face systematic societal and institutional discrimination.[8] The US Department of State found in 2020 that some religious leaders and media personalities continue to employ discriminatory language against Christians.[9] It noted that existing anti-discrimination laws and legal protections are not always enforced and Coptic Christians can face discrimination in employment and other areas and that Coptic Christians are under-represented or non-existent in senior roles in the military, police, civil service and universities.[10] The United States Commission on International Religious Freedom (USCIRF) states that religious discrimination remains ‘pervasive.’[11] As reported by the US Department of State, NGOs stated discrimination and sectarian violence against Copts persisted at the local level, often with inadequate intervention from security services to prevent it; and that many religious minorities lived in fear of societal persecution.[12]
[8] ‘World Report 2020. Events of 2019’, Human Rights Watch (HRW), 14 January 2020, p.182, 20200115082903
[9] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020 p.20
[10] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020 p.20
[11] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020 p.20
[12] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020
With regard to the 2011 Egyptian Revolution and its aftermath, DFAT stated:
2.38 Egypt experienced a major decline in law and order in the wake of the 2011 Revolution. A sizeable increase in violent crime, civil unrest and terrorist attacks at this time affected all Egyptians. There was a significant growth in communal violence, which impacted particularly on the Christian community.
…
3.34 Most Christians viewed the post-2011 Revolution ascendency of the Muslim Brotherhood with considerable apprehension. They regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi’s public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians …. Local sources report that Christians generally remain strong supporters of Sisi, although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt.[13]
[13] ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, p.18, 20190617130817
In relation to recent violence against and terrorist attacks on Christians and communal violence in Egypt, DFAT, in its June 2019 report, provided the following information:
3.21 In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark’s Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks.
3.22 Most communal incidents in Egypt take the form of vandalism and destruction of property. The large-scale anti-Christian violence that occurred in 2011 and 2013 notwithstanding (see Security Situation), high-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
3.23 A general breakdown in law and order nationwide occurred in the years following the 2011 Revolution, peaking 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. On these occasions, Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools, and private property. [14]
…
3.26 DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.
[14] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020
The evidence indicates that there have been no large-scale attacks against Coptic Christians in 2019/2020, although terrorist attacks continue.[15] Security forces have reportedly thwarted a number of attempted attacks, including an April 2020 planned attack on Easter services.[16] In February 2018, security forces launched ‘Operation Sinai 2018’, increasing the offensive against Islamic State-aligned militants in North Sinai. The government and supporters claim that Operation Sinai has significantly reduced the frequency and scale of militant attacks.[17]
[15] ‘Egypt 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 30 April 2020
[16] ‘Egypt: Extremism & Counter-Extremism’, Counter Extremism Project, n.d., 20200515124233; ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, p.18, 20190617130817; ‘International Religious Freedom Report for 2019 – Egypt’, US Department of State, 10 June 2020, p.1, 20200612134318
[17] ‘Is Islamic State making a comeback in Sinai?’, Al Monitor, 07 June 2020, 20200609155945; ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, pp.14&18, 20190617130817; ‘BTI 2020 Country Report – Egypt’, Bertelsmann Stiftung, 29 April 2020, 20200501162631
60 ‘USCIRF 2020 Annual Report’, United States Commission on International Religious Freedom (USCIRF), 28 April 2020, pp.66–67, 20200429103634
As to the prevalence of communal violence in October 2018, the Tahrir Institute for Middle East Policy notes the following:
Sporadic sectarian violence flares up in addition to organized attacks. Such violence is often sparked by attempts to build churches, interfaith romances, or property disputes that become sectarian. In a recent example, on August 13, Copts in the village of Dimshaw Hashim in Minya were subject to sectarian attacks by Muslim villagers, a common occurrence in the province, which has a high percentage of Christians. The incidents included chants of hostile slogans against Copts and the proposed construction of a church, the injury of two Copts, and damage, theft, and burning of several Copts’ houses.[18]
[18] ‘TIMEP Brief: Christians in Egypt’, Tahrir Institute for Middle East Policy, 10 October 2018, CXBB8A1DA37048
The United States Commission on International Religious Freedom 2020 report also notes that Church building, expansion and/or registration is a very sensitive sectarian issue in Egypt and frequently leads to communal violence.[19] Other issues such as interfaith relationships and conversions can lead to communal violence.[20] Small-scale disputes or neighbourhood disagreements can also take on a sectarian dimension and escalate into communal violence.[21] Egypt is recommended for the Special Watch List by the United States Commission on International Religious Freedom in its 2020 Annual Report. [22]
[19] USCIRF 2020 Annual Report', United States Commission on International Religious Freedom (USCIRF), 28 April 2020, pp.66-67, 20200429103634
[20] 'TIMEP Brief: Christians in Egypt', Tahrir Institute for Middle East Policy, The, 10 October 2018, CXBB8A1DA37048
[21] DFAT Country Information Report Egypt (17 June 2019)', Department of Foreign Affairs and Trade, 17 June 2019, pp.20-21, 20190617130817; 'Egypt: Coptic Christian family stabbed by radical Muslim wielding dagger', Christian Post, The, 23 November 2019, 20191127155613
[22] USCIRF 2020 Annual Report', United States Commission on International Religious Freedom (USCIRF), 28 April 2020, p.66, 20200429103634. The Special Watch List Watch is for countries that have engaged in or tolerated “severe violations of religious freedom”
The Tribunal has also considered the country information provided by the applicants in support of their claims throughout the process. The Tribunal accepts that terrorist acts have been perpetrated by extremist groups who target the Christian community in Egypt. The Tribunal finds, however, that the attacks, although targeted, are sporadic and isolated in nature. The Tribunal also notes that the Sisi government is waging an ongoing campaign against Islamic militants and that the Sisi government has shown significant support for the Coptic community in the face of these attacks.[23] Reports confirm that the Coptic Orthodox Church has expressed confidence in the efforts of the Egyptian state in protecting Copts against sectarian violence. For example, in March 2017, the Coptic Pope said that Copts face problems but they are minor and should be dealt with case by case.[24] He said that the state is doing its best to secure churches, and that he could ask no more of the government in this regard.[25] The Tribunal accepts that Islamic State in Egypt is increasingly targeting Coptic Christians particularly in far-off Upper Egypt, and that communal violence flares from time to time. The Tribunal is not, however, satisfied that all Coptic Christians are at risk of being targeted by Muslims or the authorities in Egypt. The Tribunal finds that the current government is attempting to improve the security situation for Copts living in Egypt. The Tribunal finds that Coptic Christians generally and without more, do not face a real chance or a real risk of facing serious or significant harm in Egypt at the hands of terrorist organisations or as a consequence of sectarian violence. There is no persuasive evidence before the Tribunal that would suggest that Coptic Christians are denied the right to practise their religion by Egyptian law or government practice.
[23] See ‘Are Copts at risk because of their Sisi support?’, The New Arab, 14 March 2017, CXC9040663760; ‘2015 Report on International Religious Freedom – Egypt’, US Department of State, 10 August 2016, p.1, OGD95BE926698; ‘Analysis: Egyptians see failed security in church attacks’, CNN, 09 April 2017, CXC9040665529; and ‘Egypt govt to compensate victims of Minya attack on Coptic Christians’, Ahram Online, 27 May 2017, CXC9040668195
[24] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474
[25] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474
In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities: at [35]. It found that this proposition was consistent with the observations of the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153], where it was emphasised that an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned. See also SZBQJ v MIMIA [2005] FCA 143, where the Court stated at [21] that ‘it is obvious that the impact and circumstances surrounding the application of a national policy may impact differently on different persons so that in one instance the impact may constitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution’. In SZBBP v MIMIA [2005] FMCA 5, the Court held at [35] that in concluding that harm in the form of threats did not constitute serious harm, the Tribunal had erred in failing to take into account the applicant’s age and frailty. While the High Court has held that verbal threats do not constitute ‘serious harm’: VBAO v MIMIA (2006) 233 CLR 1, the Court’s reasons do not disturb the proposition that matters such as age and frailty should be taken into account when considering whether a future risk amounts to ‘serious harm’ in the relevant sense. The instances of ‘serious harm’ set out in s.91R(2) and s.5J(5) support this view. For example, an applicant’s personal circumstances would be relevant to whether the forms of economic harm or denial of access to services mentioned in those sections ‘[threaten] the person’s capacity to subsist’.
The Tribunal has therefore taken the applicants’ particular circumstances into account in making its assessment. The Tribunal finds that the applicants are in an extremely vulnerable position. The applicants are [age] and [age], are in a poor physical state with a range of serious medical difficulties. The applicant can only walk with a Zimmer frame and there are ongoing medical needs. The applicant also has mild cognitive impairment. They are unable to live alone without ongoing support from their three children to assist with their basic needs. They have no home or anyone to care for them in Egypt.
Whilst the Tribunal rejects that they are of any ongoing specific interest, the Tribunal is mindful of DFAT’s assessment that occasional incidents of communal violence are likely to continue to occur in Egypt. It accepts that there is verbal abuse of Coptic Christians and harassment. Due to their extreme vulnerability, the Tribunal is of the view that the likely psychological and physical pressure brought to bear upon the applicants through any harassment or discrimination by means of verbal abuse or violence, albeit occasional or sporadic, cannot be discounted and would reach the level of serious harm for the applicants in their particular circumstances.[26]
[26] See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1
Therefore, having regard to the applicants’ particular circumstances, the Tribunal is satisfied that, if they were to return to Egypt, there is a real chance that they would be subjected to harassment and discrimination. The Tribunal is satisfied that, in view of the applicants’ vulnerability, this discrimination would be at an oppressive level to the extent it would amount to serious harm as contemplated by s.5J(5) of the Act. The Tribunal therefore accepts that s.5J(4)(a) is met.
Pursuant to s.5J(4)(c), to be persecution, the harm the applicants will suffer must be systematic, in the sense of being deliberate and premeditated,[27] and discriminatory, in the sense that the persecutor is motivated to harm the applicant personally[28] because of their religion. The Tribunal accepts from the country information above that the harassment and discrimination the applicants will face, including verbal abuse and harassment is systematic and discriminatory. The Tribunal finds that the conduct to which the applicants will be subjected is systematic and discriminatory essentially and significantly on account of their religion and so the Tribunal is satisfied that s.5J(4)(a) and s.5J(4)(c) are met, and, therefore, all of s.5J(4) of the Act, is met.
[27] See VSAI v MIMIA [2004] FCA 1602
[28] Ram v MIEA (1995) 57 FCR 565 at 568
After assessing all the evidence, the Tribunal has found that the applicants have a real chance of persecution. The Tribunal finds that the real chance of persecution relates to all areas of Egypt due to the widespread harassment and discrimination of Copts throughout Egypt.
Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them.
The availability of state protection to Christian Copts is difficult to gauge. The information indicates that the government prosecuted some perpetrators of crimes targeting Christians and instances of sectarian violence.[29] The official message of the Coptic Orthodox Church under Pope Tawadros II praises the Sisi government for its protection of the community. The government, however, suppresses any criticism of their ability or initiative to protect Copts and has engaged in a number of symbolic gestures such as establishing a committee to address sectarian violence and public pronouncements calling for national unity by President Sisi.[30] Security is increased around churches and monasteries during Christian holy days and security forces have reportedly thwarted a number of terrorist attacks.[31] In April 2020 security forces fought an armed battle in Cairo against militants who were reportedly planning to attack Easter services.[32]
[29] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020
[30] ‘To Protect Religious Freedom in Egypt, Ease Authoritarian Restrictions’, Freedom House, 21 November 2019, 20200626150103; ‘Saviour or dictator: Copts in Sisi’s Egypt trapped by a strongman’s balancing act’, The New Arab, 04 February 2020, 20200618093815; ‘Copts, Church, and State: Egypt’s Christians Frustrated with Lack of Protection’, The Tahrir Institute for Middle East Policy, 15 February 2019, 20200630154353
[31] ‘Egypt: Extremism & Counter-Extremism’, Counter Extremism Project, n.d., 20200515124233; ‘Egypt 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 30 April 2020, 20200529133942; ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, p.18, 20190617130817
[32] ‘Egyptian policeman, seven suspected militants killed in Cairo gunbattle’, Reuters, 15 April 2020, 20200417160117
DFAT assesses that Egyptian authorities are generally committed to preventing communal violence, but this commitment may vary between individuals and locations. Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.[33] According to Christian advocacy group, International Christian Concern (ICC), in 2019 to 2020 there has been a greater police presence on the streets and this has deterred mob attacks, but also increased fear of state monitoring.[34]
[33] ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, p.19, 20190617130817
[34] ‘The Writing on Egypt’s Wall’, International Christian Concern (Persecution.org), 05 March 2020, 20200618095445
There are widespread claims that the Sisi government’s purported support for Copts has not filtered down to a bureaucratic, judicial and local government level.[35] There is a perception that there is a culture of impunity around mob violence against Copts committed by ordinary Egyptian citizens (as opposed to Islamists) and that security forces rarely intervene to stop attacks.[36]
[35] ‘Christians in Egypt face unprecedented persecution, report says’, The Guardian, 11 January 2018, 20200619151258; ‘General Briefing: Egypt’, Christian Solidarity Worldwide, 01 May 2020, 20200630155852
[36] ‘Saviour or dictator: Copts in Sisi’s Egypt trapped by a strongman’s balancing act’, The New Arab, 04 February 2020, 20200618093815; ‘Egypt: Church serving 3,000 destroyed’, Open Doors, 09 June 2020, 20200630160057; ‘Egypt arrests 14 Copts protesting church destruction’, Middle East Monitor (MEMO), 21 May 2020, 20200630160301; ‘Copts, Church, and State: Egypt’s Christians Frustrated with Lack of Protection’, The Tahrir Institute for Middle East Policy, 15 February 2019, 20200630154353

The information indicates that incidents of communal violence are frequently ‘resolved’ by customary reconciliation, effectively making legal impunity for attackers the systematic norm.[37] Human rights groups and Christian advocacy groups say that this practice effectively precludes ‘recourse to the judicial system in most cases, as victims were regularly pressured to retract their statements and deny facts, leading to the dropping of charges.’[38] Police forces may pressure Copts to take part in reconciliation sessions by arresting members of both sides, including those targeted in the attack.[39]
[37] ‘The New York Post Whitewashes the Plight of Egypt’s Copts’, Samuel Tadros, Quillette, 22 October 2019, 20191023102053; ‘A look inside Egypt’s most embattled minority: The Christians of “Garbage City”’, Sohrab Ahmari, New York Post, 15 October 2019, 20191016163943; ‘USCIRF 2020 Annual Report’, United States Commission on International Religious Freedom (USCIRF), 28 April 2020, pp.66–67, 20200429103634; ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, p.43, 20190617130817; ‘International Religious Freedom Report for 2019 – Egypt’, US Department of State, 10 June 2020, pp.13–14, 20200612134318
[38] ‘USCIRF 2020 Annual Report’, United States Commission on International Religious Freedom (USCIRF), 28 April 2020
[39] ‘Justice Denied, Promises Broken: The Situation of Egypt’s Minorities Since 2014’, Minority Rights Group International (MRG), 01 January 2019, p.10, 20190614133616
Human rights groups and many Christian community representatives said the practice of customary reconciliation constituted an encroachment on the principles of non-discrimination and citizenship and pressured Christians to retract their statements and deny facts, leading to the dropping of formal criminal charges.[40] On 25 January 2019 MRGI released a report, Justice Denied, Promises Broken: The Situation of Egypt’s Minorities Since 2014, which stated, ‘A key factor in the prevalence of sectarian attacks against Christian communities is the continued practice of “reconciliation sessions” between communities, often with the active encouragement of police and officials. This reliance on informal justice approaches that are usually weighted heavily in favour of the Muslim majority is further entrenched by the failure of security forces and the formal judiciary to discharge their responsibilities to prevent and punish targeted attacks on Christians…The dominance of this partial system of informal justice is accompanied by the failure of the formal justice system to protect Christian and other minority victims.’[41]
[40] ‘International Religious Freedom Report for 2019 – Egypt’ US Department of State, 10 June 2020
[41] ‘Justice Denied, Promises Broken: The Situation of Egypt’s Minorities Since 2014’, Minority Rights Group International (MRG), 01 January 2019, p.10, 20190614133616
Information on the legal system generally indicates that the constitution provides for an independent judiciary, and the government generally respects judicial independence and impartiality. The US Department of State reports that the law provides the right to a fair and public trial, but the judiciary often failed to uphold this right. DFAT states that the quality and impartiality of individual judges may vary, particularly at more junior levels and that ‘individual judges can be subjected to community pressure to rule in accordance with dominant social and political norms, particularly in cases where religion is a factor’.[42] Recent reports also indicate that, as the pattern of authoritarianism and state control continues, the independence of the judiciary is weakening.[43]
[42] ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, 20190617130817
[43] ‘Permanent State of Exception’, Amnesty International, 29 November 2019, 20191129100607; ‘BTI 2020 Country Report – Egypt’, Bertelsmann Stiftung, 29 April 2020, 20200501162631; ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, 20190617130817
As to the police in Egypt, DFAT[44] notes that:
Professionalism varies across the police. The effectiveness of the police in general is limited by a shortage of equipment, a lack of training, low pay, and poor investigative skills, particularly in relation to investigating cases of sexual assault.
[44] ‘DFAT Country Information Report Egypt (17 June 2019)’, Department of Foreign Affairs and Trade, 17 June 2019, 20190617130817
DFAT further notes in its 2019 Country Information Report that:
The police do not enjoy the same high public esteem as the Egyptian military. The police’s ability to deal with evidence is widely mistrusted, particularly in relation to politically sensitive cases. Police mistreatment and impunity was a particular focus of protesters in the January 2011 revolution. Calls for investigations into incidents of police brutality remain common. The Ministry of Interior announced in February 2017 the formation of committees to evaluate police officers on ethics, behaviour, and psychological condition; while in March 2017 it signed a joint protocol with the NCHR to train 300 police officers on human rights.
There have been cases of police officers being successfully prosecuted for sexually assaulting or fatally beating detainees. In October 2017, the Court of Cassation confirmed prison sentences for six officers found guilty of beating a detainee to death in a Luxor police station. Human rights observers report, however, that impunity for the police (and other security forces) remains a significant ongoing issue. Authorities do not investigate all complaints of police abuse, and many prosecutions have resulted in acquittals due to insufficient or contradictory evidence.
On the basis of the evidence before it, the Tribunal is not satisfied that effective State protection is available to the applicants in Egypt.
Therefore, based on the information above, the Tribunal finds that effective protection measures as defined in s.5LA of the Act are not available to the applicants in Egypt: s.5J(2).
Section 5J(3) of the Act provides that 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, with a number of stated exceptions. The exceptions set out in s.5J(3)(a) to (c) include characteristics that are fundamental to a person’s identity or conscience and characteristics that are innate or immutable. The Tribunal is satisfied the applicants are not excluded from having a well-founded fear of persecution by the operation of s.5J(3) as their religion is a characteristic that is immutable.
Therefore, based on all the evidence above, the Tribunal finds the applicants have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, they satisfy the meaning of ‘refugee’ set out in s.5H of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicants are persons 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 applicants satisfy s.36(2)(a) of the Migration Act.
Gabrielle Cullen
Member

ATTACHMENT – CRITERIA FOR PROTECTION
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 themselves of the protection of that country: s.5H(1)(a). 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), 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–5LA, which are extracted below.
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 below.
Mandatory considerations
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.
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.
…
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.
…
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.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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 the 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 of 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 of persecution would not exist if it were assumed that the fear of 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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
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