1710400 (Refugee)

1710400 (Refugee) [2021] AATA 4223 (24 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710400
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Nicole Burns
DATE:24 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration and directs that the applicant satisfies Article 1A(2) of the Refugees Convention.
Statement made on 24 August 2021 at 3:26pm

CATCHWORDS
REFUGEE – protection visa – Egypt – political opinion – anti-government/pro-Muslim Brotherhood – Freedom and Justice Party (FJP) – charged with ‘riot’ for involvement in protests and political membership – credibility assessment – depart country legally using own passport – watchlist/travel ban – veracity of documents provided to the Tribunal – criminal justice system as an instrument of state repression – potentially life-threatening prison conditions – ill-treatment of detainees – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 375A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the 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 16 June 2014 and the delegate refused to grant the visa on 4 May 2017.
The applicant appeared before the Tribunal on 26 April 2021 and 21 June 2021 to give evidence and present arguments about the issues in his case. The Tribunal also received oral evidence from his wife ([Ms A]) and his lawyer ([Mr B]) based in Egypt, and a friend based in Australia ([Mr C]). The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearings.
Non-disclosure certificate
The Tribunal notes the Departmental file contains information that is subject to a non-disclosure certificate: the delegate has certified that disclosure of the material is contrary to the public interest under s.375A of the Act, which means the material is not to be disclosed to the applicant or another person. However, as the certificate dated 4 May 2017 in this case relates to a protection visa, it has been issued under the wrong provisions of the Act and is therefore invalid.
Broadly, the information covered by the certificate relates to a case report dated 22 September 2016 by the Department’s document examination unit (DEU) which raised concerns about the veracity of several documents purportedly from Egypt’s Ministry of Justice relating to the applicant’s legal matters in Egypt, which the applicant had submitted in support of his visa application (detailed below). These findings were shared with the applicant by the delegate in a letter and he provided comments in response in writing. His representative has also (extensively) addressed this issue in his submissions to the Department and Tribunal, and provided further versions of the documents with additional stamps and verification by relevant ministries, considered where relevant below.
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
1. owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims and evidence
The applicant is a [age]-year-old married man from [Area 1], Dakahlyia Governate in Egypt. He first came to Australia in January 2008 as the holder of a student visa, completing studies in [Discipline 1] and [Discipline 2]. He visited Egypt from Australia four times since: the last time [from] March [to] April 2014. His wife and two children have remained in Egypt, living in an apartment in [Area 1], Mansoura. His mother and brothers also reside in Egypt, near his wife and children.
The applicant was born in [another country], moved to Egypt with his parents when he was [a child], and states he is a citizen of Egypt. He came to Australia as the holder of an Egyptian passport. The delegate did not indicate any issues with his claimed identity or nationality. He has provided the Tribunal a copy of his Egyptian passport. Accordingly the Tribunal finds the applicant is a national of Egypt against which it has assessed his protection claims.
In summary the applicant claims to fear persecution from the authorities in Egypt based on his past support for the Muslim Brotherhood and the Freedom and Justice Party (FJP). He claims to have been arrested during his visit there in 2014 and charged with ‘riot’ (related to his attendance at a Muslim Brotherhood protest at the Ittihadia (presidential) palace in 2012) and belonging to the Muslim Brotherhood – a proscribed organisation – and released on bail. He claims he will be arrested immediately on his return and likely face imprisonment and possibly the death penalty.
The applicant’s initial claims were set out in his protection visa application and in a written statement. In it he states, among other things, that he was brought up in a religious family which believes in the ideology of the Muslim Brotherhood and he became a member of their political party – the Freedom and Justice Party (FJP) – when he visited Egypt from Australia in 2011. He was introduced to the Muslim Brotherhood by his father’s cousin, who was a very active member. When he returned to Egypt recently to see his newborn child, he noticed most of his relatives, friends or contacts who belong to the Muslim Brotherhood were either imprisoned, or had travelled overseas. This included his father’s cousin – [Mr D], [office bearer] of the FJP in [Area 1] – who was caught by the security forces and accused of attempting to subvert the president and for causing turmoil after the coup. [In] March 2014 police raided and searched the applicant’s home, accused him of being a Muslim Brotherhood member, took various books and papers, arrested him and took him to the national security department where he was detained and questioned about his involvement with the Muslim Brotherhood, FJP and his family members, including [Mr D]. He was freed after paying bail. He then returned to Australia.
Material provided in support of the visa application included several documents purportedly from Egypt’s Ministry of Justice relating to police investigations and court proceedings against the applicant regarding his involvement with the Muslim Brotherhood. Specifically: three investigation reports[1], a court referral[2] and a Power of Attorney[3] authorising his then lawyer to deal with his legal matters. A detailed list of these and other relevant supporting documents provided to the Department is attached to this decision record.
[1] Report number [number] and [number] dated [in] March 2014, and report number [number] dated [in] March 2014.
[2] Dated [April] 2013.
[3] Dated [March] 2014.
As noted, the delegate had these documents examined by a staff member in their document examination unit (DEU), who concluded that: documents one to three (all investigations reports) lacked credibility due to the manner of production; document four (court referral) did not allow for ‘any reasoned evaluation’ given its ‘low quality generation’; and the genuineness of document five was ‘inconclusive’ due to the ‘lack of specimen material’. The delegate wrote to the applicant advising of the DEU results. In his response,[4] the applicant said the documents were genuine, and provided documents 1 to 4 certified by the Ministry of Justice (the third version), and documents 1 to 4 certified by the Ministry of Justice and the Ministry of Foreign Affairs (the fourth version). He also provided a statement from [Mr E], the applicant’s then lawyer in Egypt, who explained the process for obtaining the documents. Nonetheless, given concerns raised by the DEU and country information indicating document fraud is rife in Egypt, the delegate concluded that the first three documents were not authentic, which led her to find that document four was also not authentic.
[4] Dated [April] 2017.
For these reasons, plus other credibility concerns with aspects of the applicant’s claims relating to his arrest and police investigation, the delegate did not accept his claims to have been arrested, charged, and convicted due to a connection with the Muslim Brotherhood. She accepted he was a Muslim Brotherhood supporter, but not that he was a leader or particularly active or had a profile with the Egyptian authorities given: he had been mainly resident in Australia since 2008; he had spent approximately seven months in Egypt since the Revolution in 2011; the Muslim Brotherhood has about a million members; and her view that the authorities were unlikely to have the capacity or interest in seeking to persecute everyone associated with the Muslim Brotherhood. The delegate noted DFAT’s then assessment that high-profile Muslim Brotherhood members were at risk of persecution, but not all members and supporters. The delegate refused the visa application on 4 May 2017.
On review the representative has provided a comprehensive written submission[5] to the Tribunal reiterating the applicant’s background, involvement with the Muslim Brotherhood and FJP in Egypt, past experiences in Egypt as a result, and updated information about his circumstances. He referred to country information to support his contentions that the applicant’s fears on return to Egypt are well founded, where relevant. Additionally the representative submitted several supporting documents, which included copies of documents already submitted to the Department, further versions of the same Ministry of Justice documents, and the following additional documents:
a.Original power of attorney for the applicant’s (second) lawyer, [Mr E], certified by the Egyptian consulate Melbourne, [in] February 2017.
b.A translated copy of the applicant’s Egyptian court documents dated [in] March 2021.
c.Translated court documents relating to [Mr D] dated [in] March 2021.
d.Copies of translated ‘secret assigning’ letters from the Muslim Brotherhood to the applicant dated [in] July 2007 [and] April 2012.
e.A statement from [Mr C], a friend of the applicant’s in Australia, dated 29 March 2021.
[5] Dated [April] 2021.
In his submission the representative also explained the process for obtaining the various versions of the legal documents and addressed the concerns raised by the delegate (following the DEU results).
Over the course of two hearings the applicant gave evidence about his background, life in Egypt and reasons for leaving, summarised as follows. He said from around the age of [age] he lived with his family in [Area 1], Dakahlyia Governate. After high school he studied at university in Cairo for four years, completing his bachelor’s degree in 2005. After university he worked [at workplace] near his home until he came to study in Australia in 2007. He finished studying in 2014 and presently works as a [Occupation 1] at a [business]. From January 2008 to March 2014 the applicant visited Egypt four times, staying at his parents’ house in his home area. During his visit home in 2010 he married his now wife and she then moved into his parents’ home. His son was born on [date] and his daughter on [date]. The applicant said his wife and children now live in a flat near his parents’ house: only his mother lives there presently as his father died in 2018.
The applicant said his problems started shortly after his return visit to Egypt in [March] 2014. He told the Tribunal he had finished his studies in Australia and had planned on returning to Egypt, noting there was a work opportunity in Egypt he planned on exploring during his visit. However, the day after he returned police came to their apartment, and arrested him. They searched the apartment and found material relating to the Muslim Brotherhood and FJP, of which he was a long-time supporter. The police hit his wife when she protested his arrest. Handcuffed, the applicant was driven to a building somewhere in [Area 1] – he thinks related to the national security area/department – and placed in a room. There he was asked several questions and accused of being a member of the Muslim Brotherhood and involved in a demonstration at the Ittihadia palace in Cairo in 2012 where some people were killed, and government buildings and cars were damaged. He was detained [for number of days in] March and ill-treated during that period: that is, verbally abused, hit ‘a little’ and given limited and poor-quality food and water. On [date] March (2014) they released the applicant on bail ([amount] Egyptian pounds). He was charged with damaging government property during the Ittihadia palace protests in 2012 and for being a member of the Muslim Brotherhood. He also said they accused him of killing some protesters but noted it was just an accusation: there was no specific charge.
The applicant’s bail conditions included having to advise the authorities if he changed address (he was bailed to his parents’ address) and comply with court dates. He does not recall a condition being attached that he was not to leave the country.
Shortly after he was released from detention the applicant decided to return to Australia, based in large part on advice from his lawyer at the time that he was likely to go to prison given the Ministry of Interior intended to ‘finish off’ Muslim Brotherhood members and supporters. He left Egypt [in] April 2014, utilising his return ticket to Australia. Before leaving he renewed his Egyptian passport [by] attending an office not far from his village. His lawyer had advised that because no court date had been set, that would be possible. Before he left he also organised a power of attorney, giving his lawyer authority to deal with his court case and related legal matters.
The applicant told the Tribunal he had no problems leaving Egypt. He explained that prior to leaving he had contacted an Egyptian friend based in Australia, [Mr C], and advised him of his situation. [Mr C] then asked his brother – who worked as a [Occupation 2] in Egypt at the time – to check with his contacts at the airport if the applicant’s name was subject to a travel ban. His friend’s brother found out the applicant’s name was not listed on any travel bans or watchlist at that time.
With respect to the status of his court case, the applicant said until now the matter has been adjourned. Delays initially were due to his failure to attend court and more recently because the investigating officer – who his lawyer wants to question – has refused to appear in court, citing safety concerns. Further delays have been attributed to the fact the matter is being dealt with in the ‘terrorist’ court, which only hears matters once a month.
The applicant said after he left Egypt the police have visited his parents’ house, and his wife’s flat, looking for him, and asking questions. Further, in November 2019 the applicant’s friend ([Mr C]), who lives in Australia, visited the applicant’s wife during a visit to Egypt. Whilst there his wife told him police had visited and searched her flat that morning and told him it happened often.
The applicant explained his involvement in the Ittihadia palace protest, which he attended during a visit home in December 2012. Along with other local Muslim Brotherhood members, he was ‘ordered’ to attend by the secretary of the FJP in his city (also his father’s cousin), [Mr D]. The attendees were protesting constitutional changes made by Morsi, then leader of the Muslim Brotherhood and president at the time: [Mr D] wanted the applicant (and others) to support Morsi. The applicant said he and around 13 others travelled in cars to Cairo, around an hour and a half away, a couple of days after the protests began; parked and walked the last 10 minutes to the palace; on the way he saw people supporting Morsi and those against him, and saw protesters attempting to enter the palace, the gates of which were closed. After a few hours the applicant noticed weapons inside a building and realised something was going on. He decided to return home at that point and was not involved in any violence or destruction of property.
The applicant was asked about ongoing adverse interest in him since he left Egypt by the authorities. He said the police/security forces continue to visit and search his mother, brother’s, and his wife’s apartment – largely to annoy them and to send a message to them and the community that they are being watched. He noted that initially the authorities in Egypt targeted the leaders of the Muslim Brotherhood but now they are after anyone who is active or even only connected to them, including previous members and sometimes just those who simply oppose the government: they risk arrest and the situation is worsening. He knows this by monitoring the news and social media. In such an environment, community members are also reporting one another.

The applicant said he is also concerned about potential problems with the Egyptian authorities because of his role as an administrator of a [social media] group made up of people from his village since 2012, which he believes has been hacked twice, possibly by the authorities.
The applicant’s wife corroborated her husband’s oral evidence about his involvement with the Muslim Brotherhood and related problems during his visits to Egypt, including arrest and detention, in her oral evidence to the Tribunal. She said he was involved with the Muslim Brotherhood even before their marriage in 2010, noting it was one of the reasons why her father approved their marriage. She said since he has left, members of the security forces regularly visit their village and often search her apartment, and her husband’s mother’s apartment. The last time they searched her apartment was around a month prior (to the hearing).
In his oral evidence to the Tribunal [Mr C] said he met the applicant in Melbourne at the end of 2009, they become friends, and shared a house for three years till 2015. He also came to Australia from Egypt as a student and is now a permanent resident, married to an Australian citizen. [Mr C] confirmed the applicant told him of his arrest and interrogation by the authorities during his visit to Egypt in 2014, and that he was accused of serious crimes (killing protestors and trying to demolish public institutions) and of belonging to a terrorist group. [Mr C] also confirmed that the applicant contacted him when arrested and he was able to check with his brother – who was in [Occupation 2] – whether the applicant’s name was on a travel ban list (it was not).
The applicant had told [Mr C] earlier that he had attended the presidential palace protests in 2012 but left after he saw weapons.
[Mr C] told the Tribunal when he visited the applicant’s village in November 2019 he realised the applicant was highly respected given his past involvement introducing new people to the Muslim Brotherhood and involving the community in activities such as sport and prayer. He said during that visit he was supposed to meet the applicant’s wife and children at her flat: however on the morning of his visit she called and asked that they meet at her father’s house instead (which was 10 minutes’ drive away), which he did. There the applicant’s wife told [Mr C] that people from the national security office had visited that morning, searching for the applicant. She said she was sick of such visits, which were frequent, and often they would leave the house in a mess and terrify her children.
[Mr C] said he doubts the applicant will make it out of the airport if he returns to Egypt given how strict the authorities are with anyone who belongs to the Muslim Brotherhood. He has heard about cases of people who have disappeared once taken to the national security office, or given a life sentence if found to be terrorists: he is worried this may happen to the applicant. He has a friend who has been jailed since 2013 in Egypt, awaiting execution, simply because he was involved in a protest (he did not elaborate).
In his oral evidence to the Tribunal, [Mr B] explained that he is the applicant’s third lawyer, who took over the applicant’s case around a year prior from [Mr E], who is unwell. He said the applicant has been accused of being a member of the Muslim Brotherhood, which is illegal in Egypt and for ‘riots’ – damaging public and private assets and interfering with public transport – related to the Ittihadia palace protests in Cairo in 2012. He said the applicant was arrested and charged in March 2014 after returning to Egypt (and after the Muslim Brotherhood were ousted from power in Egypt, in July 2013).
[Mr B] said the applicant’s court matter, which is now before the terrorist section of the criminal court in Cairo, has been adjourned multiple times: the last hearing was scheduled for [date] April 2021 and is not likely to be set down for hearing again for several months. [Mr B] said it has been part of their strategy as defence lawyers to demand the head of the investigations team give evidence, but he continues to refuse because he does not want to reveal his identity and possibly endanger his life. Such delays are likely to continue. When asked his strategy moving forward, [Mr B] said when the head of investigation does appear to give evidence it will become clear that the applicant is not guilty, adding that the government is trying to manipulate the case, as they do with many similar cases involving Muslim Brotherhood members and supporters. However, he said that many receive sentences, and sometimes are accused and found guilty of ‘terrorism’ related charges, such as attending certain events/riots when they were not even there: he said he has had lots of cases like that. [Mr B] said if the applicant is found guilty of such charges he is likely to face a sentence of 15 years in jail or even the death penalty.
With respect to the applicant’s ability to leave Egypt whilst subject to these charges and bail in 2014, [Mr B] said given his name was not on a watch list, he was able to leave. He added that the law which allowed the authorities to subject Muslim Brotherhood members and/or associates to watchlists was not amended until after the applicant left Egypt, that is, in 2015. [Mr B] said he is confident the applicant’s name will now be on an airport watchlist and he will be arrested as soon as he arrives. He doubts he will get bail again, reiterating that such cases are manipulated, and he doubts the situation will change whilst the current government remains in power. He noted that detectives have visited the applicant’s place in [Area 1] since he left.
[Mr B] said he also represents the applicant’s father’s cousin, [Mr D], an accused member of the Muslim Brotherhood and leader of the FJP (in [Area 1]) who is currently in prison in Egypt given they were unable to secure bail in his case. His matter has been adjourned as well.
With respect to the process of obtaining legal documents, the applicant said from Australia he asked his lawyer in Egypt to obtain the documents as evidence of his ongoing court matter; he did so through the specific section at the Ministry of Justice. He has provided several versions of the documents with stamps, which he would not have been able to do if they were not genuine. [Mr B] said the applicant’s previous lawyer, obtained the police and legal documents and forwarded them to the applicant. He explained the process to obtain the court file/documents, which starts with requesting the court file from the general ministry – for example, the Ministry of Justice – and lodging a formal request to be approved by the head of the Ministry of Justice, paying the fees; and then getting copies of the originals from the photocopy section.
The representative told the Tribunal that the applicant’s previous lawyer had indicated that as (national security) charges are pre-prepared it is possible they were photocopies of the same marks (for example). In order to demonstrate that the documents are genuine, the applicant has provided four versions of the documents via two different lawyers over a two-year period; and the most recent two versions have been certified by the Ministry of Justice and the Ministry of Foreign Affairs.
Findings with respect to the applicant’s past experiences and profile in Egypt
The Tribunal found the applicant’s oral evidence detailed, coherent and spontaneous and generally consistent with his written claims before the Department. Further, it was corroborated by the oral evidence of his wife, his friend ([Mr C]) and his current lawyer in Egypt who has been overseeing his court matter for the past year after taking over from his previous lawyer. Over the course of two hearings and several hours the applicant was able to describe in detail his involvement with the Muslim Brotherhood (and FJP) in the past in Egypt, his motivations, problems that ensued including arrest and detention, and the political and security context in his home country against which such events took place.
The Tribunal accepts the applicant was a Muslim Brotherhood member and supporter from around 2002, during his second year of university. Based on his representative’s submission and the applicant and his wife’s oral evidence, it accepts that his role – before leaving Egypt to study in Australia and during his several visits home – included organising cultural and sporting activities in his hometown of [Area 1], as well as religious activities such as educating children after prayer about Islam and answering their questions. He also ‘sponsored’ a family in his hometown over the years, keeping them informed of relevant developments and activities, services and/or conferences.
The applicant said in the past he would receive letters from the Muslim Brotherhood administrative desk in his area, detailing what he should be doing and any new political issues or updates to be aware of: he provided to the Tribunal translated copies of two letters headed ‘secret assigning documents’ as evidence. He said after he received the delegate’s decision he tried to obtain further evidence of his involvement with the Muslim Brotherhood and his friend and Muslim Brotherhood supervisor, [Mr F], sent him the letters sometime in 2019.
The Tribunal also accepts the applicant became a member of the FJP when it was established in 2011 during a visit home. He provided copies of two FJP membership cards to the Department, certified by a Lieutenant Colonel [in] May 2014 (after he had left Egypt). He has indicated that because his father’s cousin ([Mr D]) was [office holder] of the FJP at the time in [Area 1] and because he was already a Muslim Brotherhood member, he was not required to go through the usual process of obtaining membership. He has also indicated that whilst an FJP member, he was not involved with specific activities. However during his return visit to Egypt in 2011 it is submitted that he conducted marketing activities for the party and approached people on the street to hand out forms to sign up. Given the Tribunal accepts the applicant was a long time Muslim Brotherhood supporter/member at that stage, whose relative ([Mr D]) was the leader of the FJP in his home area, and given he had other relatives connected to both the Muslim Brotherhood and FJP, the Tribunal finds this plausible and accepts his evidence in this respect.
The Tribunal also accepts that in 2004, whilst at university and living with other Muslim Brotherhood members in a different city, the applicant’s house was monitored by police and on one occasion members of the national security agency came and took their details. He did not have any further problems with the authorities until his return visit to Egypt in early 2014 (discussed more below).
The Tribunal accepts that during a visit to Egypt in December 2012, the applicant attended the Ittihadia presidential palace protest, on the direction of by [Mr D], along with other Muslim Brotherhood members in his area, to show support for then President Morsi. The applicant claims he was not involved in any of the violence that ensued, leaving when he became aware that some Muslim Brotherhood participants possessed weapons. Country information indicates that on 5 December 2012, hundreds of Muslim Brotherhood members and supporters marched to the presidential palace in response to several days of protests by Morsi opponents. They were joined by the Freedom and Justice Party, whose leaders called on their members to participate in the protest. Muslim Brotherhood and FJP supporters then broke up a sit-in of several dozen anti-Morsi protesters. Reports alleged that several dozen anti-government protesters were detained and abused by Muslim Brotherhood members.[6]
[6] Human Rights Watch, ‘Egypt: Investigate Brotherhood’s Abuse of Protesters’, 12 December 2012 (hrw.org).
Additionally, the Tribunal accepts that due to his participation in the Ittihadia presidential palace protest in 2012, and more broadly his involvement with the Muslim Brotherhood, the applicant was arrested [in] March 2014 and charged with rioting/damaging property not long after he had returned to Egypt after his studies had finished in Australia. It accepts he was detained by national security personnel for over two weeks and questioned about his association with the Muslim Brotherhood and [Mr D] in particular. It accepts at the time of his arrest the police searched the applicant’s house, confiscated some Muslim Brotherhood material, and assaulted his wife when she questioned them. The Tribunal accepts the applicant was mistreated during his detention including being verbally abused and hit, noting such treatment is consistent with reports about treatment of Muslim Brotherhood (or suspected) detainees at the time[7]. Further, the Tribunal accepts the applicant was released on bail for [amount] Egyptian pounds around two to three weeks later.
[7] US Department of State, Country Reports on Human Rights Practices for 2014: Egypt’, 2014; Amnesty International, ‘Egypt: Rampant torture, arbitrary arrests and detentions signal catastrophic decline in human rights one year after ousting of Morsi’, July 2014.
Based on the applicant’s and [Mr B]’s evidence – which the Tribunal found compelling – and updated court document, the Tribunal accepts his court case is ongoing, having been adjourned several times. [Mr B] told the Tribunal the last hearing of the applicant’s case at the criminal court that deals with terrorism matters in Cairo on [date] April 2021 was adjourned because the head of investigations had refused to appear, citing privacy and safety concerns.
The Tribunal notes the applicant’s account of what happened to him in 2014 accords with country information (including that referred to by the representative in his written submission to the Tribunal) about the treatment of Muslim Brotherhood members and supporters after Morsi was removed from power in July 2013, and the subsequent crackdown on supporters of Morsi and the Muslim Brotherhood. Reports indicate that in this period Egyptian security forces arrested, detained and prosecuted large numbers as part of their crackdown on dissent and that a large number were accused of participating in illegal or violent protests, as well as membership in or support of the Muslim Brotherhood.[8] This does raise a question as to why the applicant, as a Muslim Brotherhood member, voluntarily returned to Egypt in March 2014. At hearing the applicant said the government were only taking key Muslim Brotherhood figures at the time; he was not aware they had started a clampdown on Muslim Brother members/supporters to that extent; and he did not think he would have issues given he did not do anything wrong and was never involved in ‘bad things’. The Tribunal accepts this was his views at the time. It also notes his evidence that he had finished his studies in Australia and was planning to return permanently there; he had even had a possible job lined up. However, his plans changed after his arrest in [March] 2014.
[8] Human Rights Watch, ‘Egypt: 7,400 Civilians Tried in Military Courts’, 1 April 2016, civilians-tried-military-courts; Amnesty International, ‘Egypt: Rampant torture, arbitrary arrests and detentions signal catastrophic decline in human rights one year after ousting of Morsi’, July 2014, >
The Tribunal also accepts that the applicant’s father’s cousin, [Mr D], who was [office bearer] of the FJP in [Area 1] (and a Muslim Brotherhood member) has been arrested and remains in prison in Egypt. Copies of his court documents related to his case have been provided to the Tribunal. [Mr B] – who also represents [Mr D] – told the Tribunal that [Mr D] was caught by security forces and accused of attempting to subvert the president and cause turmoil after the coup. He remains in prison after his bail was denied and his court matter has also been adjourned.
The fact the applicant was able to leave Egypt on his own passport whilst on bail without any issues raises a question about his claimed adverse interest to the authorities, including outstanding charges against him as a Muslim Brotherhood member and alleged involvement in the Ittihadia palace protests. The fact that he was able to obtain a new Egyptian passport – issued [in] 2014 – shortly before departing also raises questions. The delegate noted their concern in these respects in their decision record, which the Tribunal shares to some extent.
The applicant explained that he was able to leave Egypt (and renew his passport just prior) because his name was not on a watchlist/travel ban at the time. He told the Tribunal that he found this out via his friend’s brother who was in [Occupation 2] at the time and had connections. The Tribunal notes the applicant failed to tell the delegate this, which casts doubt on his claims in this respect to a certain degree. Nonetheless, having found the applicant a credible witness, it accepts his explanation that he was not asked specifically by the delegate, and just responded to questions directly, at the time of his interview. Whilst clearly important, his evidence in this regard forms more of an explanation as to how he was able to leave the country despite being subject to criminal/terrorism related charges and on bail: his failure to do so does not necessarily undermine his core claims, which have been consistent. That is, he has consistently claimed to have been a Muslim Brotherhood member who faced arrest and detention during his visit home in 2014. Further, the Tribunal notes the applicant’s friend in question – [Mr C] – in his written and oral evidence to the Tribunal confirmed that his brother had advised the applicant was not on a watchlist.
Additionally, the applicant’s lawyer in Egypt, [Mr B], told the Tribunal that his understanding (given he took over the case around a year ago) was the applicant was able to leave the country in 2014 because his name was not on a watchlist at the time and it was only later that the relevant laws were amended to include Muslim Brotherhood members and supporters. He suspects this was also why the applicant was able to obtain bail in 2014 but doubts he would now, given the clampdown on Muslim Brotherhood supporters and members and related legislative changes. His evidence is supported by country information that indicates that the Law Organizing the Lists of Terrorists and Terrorist Entities (commonly known as the Terrorist Entities Law), Law No. 8 of 2015, went into effect after it was ratified by President Abdel-Fattah El Sisi and published in the Official Gazette edition dated February 17, 2015[9].
[9] The Tahrir Institute for Middle East Policy, ‘TIMEP Brief: Terrorist Entities Law’, 4 April 2019
Taking into account the witness evidence on this matter, and country information that indicates not all people with charges against their names (or trials or appeals pending) are automatically put on the government’s warning list[10], the Tribunal accepts the applicant’s explanation as to why he was able to leave Egypt without any problems in 2014 (and able to renew his passport). It does not draw an adverse inference from the fact that he was able to leave the country on his own passport whilst bailed without any problems.
[10] DFAT Country Information Report, Egypt, 17 June 2019 at 5.35.
In reaching these conclusions about the applicant’s past experiences and profile the Tribunal acknowledges the concerns raised by the DEU about the veracity of some of the legal documents the applicant provided to the Department, which does raise doubts about the genuineness of the documents and in turn, his related claims. However, these concerns are outweighed, in the Tribunal’s view, by the positive aspects of this case as discussed, including the strength of the applicant’s account of his experiences, which was corroborated by the oral evidence of his wife, friend and of his lawyer whose oral testimony about the process for obtaining the documents was detailed, and consistent with the detailed statement from the applicant’s previous lawyer, [Mr E].

The representative in his submission has provided detailed explanations about how each version of the documents was obtained and certified (and by whom). He also addressed specific concerns raised by the delegate, such as concerns about the stamps and substrate. He submitted that the four versions, obtained by two different lawyers over around a two-year period, demonstrate the same qualities and are exactly the same in terms of content. Further, all four versions show the same signature in the same place on the corresponding page, either over the printed stamp or on the blank space on the page. All pages appear to be signed by the same individual, although there are minor differences in signature, to be expected if a person is signing a number of pages at the one time. Additionally, all versions were obtained from the Ministry of Justice where the documents were held, and three versions of the same document have then been officially certified by government departments as being a true copy of the original document. The certified copies have been stamped with wet stamps and the wet stamps have slightly different positions and orientations on each page. This demonstrates the documents are genuine, it is submitted.
In his statement (provided in response to the Department’s letter detailing concerns about the documents) the applicant’s then lawyer, [Mr E], stated (among other things) that all the documents previously presented were real and have ‘originals by the criminal photocopying of the competent department’.
To address some of the concerns raised by the DEU, the representative said the applicant’s previous lawyer had noted that as (national security related) charges are pre-prepared it is possible they were photocopies of the same marks. [Mr E] explains as follows his statement:
2. With regards to investigations conducted with the national Security knowledge or the national security prosecutions, they are handwritten and usually they are pre-charged documents with questions and answers and usually it happens with most of The Muslim Brotherhood cases, and they force the accused to sign them otherwise they will be subjected to material and moral coercion. Meaning that all charges against the accused are prepared and pre-stamped before arresting the accused.
Given the mass arrest of Muslim Brotherhood supporters by national security personnel around this time as noted in country information cited earlier, the Tribunal considers this explanation is plausible.
The representative also argued that the applicant should not be penalised because he has been unable to provide originals of the documents of concern, given they are held by the courts in Egypt and what was provided were certified copies of the originals. The representative noted that Departmental policy sets out obvious limitations on the opinion of a forensic document examiner if an original is not presented. Therefore, any assessment of documents 1 to 4 by the DEU in this case is limited and qualified and must be approached with caution, he argued.
Taking into account these considerations, despite concerns raised by the DEU with respect to the three investigation reports, the Tribunal does not accept that any residual concerns with the veracity of the documents undermine the applicant’s core claims.
Are the applicant’s fears of persecution on return to Egypt well founded?
Given these findings, the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Egypt from the authorities on actual or imputed political opinion grounds (anti-government/pro-Muslim Brotherhood) as a Muslim Brotherhood member and a FJP member subject to outstanding terrorism-related charges.
It is submitted the applicant faces a well-founded fear of persecution from the authorities on return to Egypt based on his political opinion (as a member of the Muslim Brotherhood and FJP) and membership of a particular social group of ‘member of the Muslim Brotherhood and its associated political party, the FJP’. Additionally the representative submitted the applicant faces a well-founded fear of persecution on return to Egypt as a member of a particular social group of ‘an admin [sic] member of a group and/or page that is against the Egyptian coup that occurred in 2013’ based on his role as administrator of a [social media] group [since] 2012, his original village. It is submitted that the group is a space for village residents to discuss relevant issues and many members are supporters of the Muslim Brotherhood and against the 2013 coup. A selection of translated posts has been provided to the Tribunal.
The representative submits that country information indicates that members of the Muslim Brotherhood continue to be at risk and are highly likely to be arrested and prosecuted in Egypt, referring to the 2019 DFAT report and more recent articles[11] about an Australian man arrested and detained in Egypt for spreading information on social media.
[11] The Sydney Morning Herald, ‘We are terrified’: Sydney man jailed in Egypt for liking a Facebook post’, 21 September 2020.
It is submitted the applicant would continue to have connections with the Muslim Brotherhood on return to Egypt which would place him at risk. He would also be at risk because he has a record with the national security office as a result of his connection with the Muslim Brotherhood and active membership. He fears he would be monitored and targeted, particularly as many Muslim Brotherhood members have been imprisoned and the government has banned all Muslim Brotherhood activities.
The Tribunal accepts the applicant has been arrested, detained, questioned, and charged by the security forces in 2014 in Egypt because he was involved with the Muslim Brotherhood protest at Ittihadia (presidential palace) in 2012 and released on bail. According to his lawyer, he was charged with ‘riot’ and being a Muslim Brotherhood member. They have managed to delay the court matter, which is now being heard in a subdivision of a court in Cairo that deals with terrorism/counter-terrorism matters. Delays are likely to continue given this division of the court only hears cases once a week every month and the national security officer responsible for conducting the investigation is not willing to attend and be cross-examined at hearing. This is why, his lawyer explained to the Tribunal, although the applicant can be tried in absentia, his matter is pending.
The Tribunal accepts, therefore, that if returned to Egypt it is highly likely the applicant will be apprehended by the authorities – either on arrival or shortly thereafter – and arrested and detained. His lawyer told the Tribunal he doubts the applicant would be granted bail this time because of the clampdown on Muslim Brotherhood members and supporters and commensurate amendments to relevant laws, and because the applicant absconded last time he was in Egypt. Given these considerations, combined with the political nature of the charges and country information about the treatment of Muslim Brotherhood members, the Tribunal also doubts the applicant will be bailed and considers it is likely he will remain in prison at least until his trial, which so far has been delayed for around seven years, and which may continue to face delays.
It is submitted the applicant faces up to 25 years imprisonment if convicted of these offences relating to his involvement in the Muslim Brotherhood and may face the death penalty.
In his oral evidence to the Tribunal, [Mr B] said the government is trying to manipulate these cases; many have received sentences, including those who were not present at the time of a protest or incident, being found guilty of terrorism. If the applicant is found guilty, [Mr B] said he considers he may face 15 years in prison or the death penalty. He is at risk if he returns because his name is now on a watchlist. He added that the situation for Muslim Brotherhood members like the applicant, who are subject to such charges, is not likely to change whilst the current government remains in power.
In the letter from the applicant’s previous lawyer, [Mr E] states as follows:
3. According to the accusation Clauses which my client signed under, he will be sentenced for life or by execution regarding the accusation Clauses relevant to whoever established, organised or managed (from management) or joined a banned group breaching the law provisions…
The Tribunal notes that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[12]
[12] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].
However country information indicates the applicant is unlikely to receive a fair trial and there are reports of politically charged cases, involving government critics or political opponents, leading Amnesty International to raise concerns in 2015 that many individuals were being pursued solely for their membership or support of the Muslim Brotherhood[13]. Amnesty International reported in 2015/2016 (as referred to by the representative in his submission to the Tribunal) that:
4. The criminal justice system continued to serve as an instrument of state repression, with courts convicting hundreds of defendants on charges such as ‘terrorism’, ‘unauthorised protesting, engaging in pollical violence and belonging to banned groups, after grossly unfair mass trials in which prosecutors did not establish the individual criminal responsibly of the defendants. At least 3000 civilians stood trial before unfair military courts on ‘terrorism’ and other charges alleging political violence. Many, including leaders of the Muslim Brotherhood, were tried in mass trials. Military trials of civilians are fundamentally unfair[14].
[13] Amnesty International, ‘Egypt: Questions and Answers: Trial of Mohamed Morsi’, 20 April 2015.
[14] Amnesty International, ‘Egypt 2015/2016’.
There are also reports that the courts have sentenced several Muslim Brotherhood supporters to death.[15]
[15] BBC News, ‘Court Confirms Egypt Muslim Brotherhood death sentences, 21 June 2014; The Guardian, ‘Egypt sentences 75 Muslim Brotherhood supporters to death’, 8 September 2018.
Given such country information, the Tribunal is satisfied that in this case the law is selectively enforced against Muslim Brotherhood members and supporters in a discriminatory manner and therefore cannot be properly described as a law of general application.
The Tribunal has considered whether the applicant faces a real chance of serious harm whilst imprisoned on remand, pending terrorism related charges and/or if found guilty and sentenced to a term or terms of imprisonment.
Country information indicates that prison conditions in Egypt are poor and potentially life threatening. DFAT notes reports by human rights observers that prison conditions do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence.[16] DFAT understands that deaths in Egyptian detention facilities happen regularly, due to severe overcrowding, violence, and a lack of access to medical care and treatment.[17] The US Department of State notes ‘instances of persons tortured to death and other allegations of killings’ in prisons and detention centres’[18]. Other sources indicate that although criminalised, torture is systematically used, taking place in prisons and police stations.[19] Officers of the National Security Agency and other security forces reportedly torture and otherwise ill-treat detainees. [20] Prisoners detained for politically motivated reasons were reportedly subject to indefinite and prolonged solitary confinement[21]. Furthermore, reports indicate that COVID-19 is a significant threat in Egypt’s overcrowded prisons.[22]
[16] DFAT Country Information Report, Egypt, 17 June 2019 at 5.31.
[17] DFAT Country Information Report, Egypt, 17 June 2019 at 4.7.
[18] 'Country Reports on Human Rights Practices for 2019 – Egypt', US Department of State, 11 March 2020, p.3.
[19] 'Permanent State of Exception', Amnesty International, 29 November 2019, Department of State, 11 March 2020, pp.2-7; 'Egypt: Police Beat Man to Death, Family Says', Human Rights Watch (HRW), 06 October 2020.
[20] ‘World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.177-178; 'Human Rights in the Middle East and North Africa: Review of 2019', Amnesty International, 18 February 2020, pp.19-20.
[21] 'Human Rights in the Middle East and North Africa: Review of 2019', Amnesty International, 18 February 2020, p.20.
[22] 'Egypt: Apparent Covid-19 Outbreaks in Prisons', Human Rights Watch (HRW), 20 July 2020; 'Mohamed Monir’s death of COVID-19 is a warning sign for journalists held in Egypt’s prisons', Committee to Protect Journalists (CPJ), New York, 06 August 2020; and ‘Imprisoned rights defenders in Egypt at ‘grave risk’ of COVID-19, warn UN experts', UN News, 24 August 2020.
Based on such country information, the Tribunal considers the applicant faces a real chance of serious harm from the authorities either on remand awaiting trial or if imprisoned for several charges, for reasons including belonging to a proscribed group and allegations he was involved in the Ittihadia palace protests, which resulted in deaths of protestors and damaged property; this would not be viewed favourably by prison guards and the authorities in general. In such a context, and given country information about poor and potentially life-threatening prison conditions, and in some instances ill-treatment of detainees, the Tribunal accepts the applicant faces a real chance of serious harm from the authorities whilst imprisoned as a Muslim Brotherhood supporter/member who has been charged with terrorism-related crimes.
Having regard to the applicant’s particular circumstances, and taking into account the above country information, the Tribunal finds that if the applicant were to return to Egypt in the reasonably foreseeable future, he would face a real chance of serious harm from the authorities as a Muslim Brotherhood supporter/member subject to terrorism related charges, as per s.91R(1)(b). The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s actual or imputed political opinion (anti-government/pro Muslim Brotherhood) as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).
Given the harm feared by the applicant is from the authorities themselves (or elements within the authorities), the Tribunal finds that the level of protection available to the applicant from the Egyptian authorities does not meet the level of protection which citizens are entitled to expect, as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
With respect to whether or not the applicant could safely and reasonably relocate to another area of Egypt to avoid the harm he fears from the authorities in [Area 1], Dakahlyia Governate, the representative submits that country information does not indicate that persecution against Muslim Brotherhood members is only occurring in a restricted section of the country. Furthermore, relocation would be futile as the applicant would be pursued by the authorities for criminal prosecution on the grounds of his involvement in the Muslim Brotherhood and FJP. The Tribunal agrees and finds that relocation to avoid the harm he fears in his home area of [Area 1] is not a safe option given the authorities exist nationally.
Having regard to the above, the Tribunal finds the applicant faces a real chance of serious harm from the authorities if he returns to Egypt in the reasonably foreseeable future, as a Muslim Brotherhood supporter/member who is subject to terrorism related charges on imputed or actual political opinion grounds. His fear of persecution on these grounds are well founded.
Given these findings, it is not necessary for the Tribunal to consider the other grounds and matters advanced.
CONCLUSION
The Tribunal is satisfied that the applicant satisfies Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal notes that the material before it may give rise to issues relating to Article 1F of the Convention, as noted by the delegate, given the applicant’s evidence that he was an active member of the Muslim Brotherhood, and involved with the Ittahadiya palace protests in 2012. In his written submission to the Tribunal, the representative states there is no evidence that the applicant has committed any act or crime which enlivens Article 1F, referring to Departmental policy that there must be ‘strong evidence’ that the applicant committed the relevant act or crime. Therefore the exclusion clause in Article 1F does not apply, he submits.
The Tribunal is not in a position to make any findings in this respect. The Migration and Refugee Division of this Tribunal has no power to consider Article 1F issues. As the Tribunal is satisfied that the applicant satisfies Article 1A(2) of the Convention, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is excluded from Convention protection by Article 1F.
DECISION
The Tribunal remits the matter for reconsideration and directs that the applicant satisfies Article 1A(2) of the Refugees Convention.
Nicole Burns
Member

Attachment – list of material provided to the Department:
·Egypt Ministry of Justice investigation report number [number] – Document One
oFirst version – uncertified, provided with application 16 June 2014
oSecond version – certified, provided to delegate following request at Protection Visa interview 2 May 2016
oThird version – certified by Egypt Ministry of Justice, provided to Department 7 April 2017
oFourth version – certified by Egypt Ministry and Justice and Ministry of Foreign Affairs, provided to Department 7 April 2017.
·Egypt Ministry of Justice investigation report [number] – Document Two
oFirst version – uncertified, provided with application 16 June 2014
oSecond version – certified, provided to delegate following request at Protection Visa interview 2 May 2016
oThird version – certified by Egypt Ministry of Justice, provided to Department 7 April 2017
oFourth version – certified by Egypt Ministry and Justice and Ministry of Foreign Affairs, provided to Department 7 April 2017.
·Egypt Ministry of Justice investigation report [number] – Document Three
oFirst version – uncertified, provided with application 16 June 2014
oSecond version – certified, provided to delegate following request at Protection Visa interview 2 May 2016
oThird version – certified by Egypt Ministry of Justice, provided to Department 7 April 2017
oFourth version – certified by Egypt Ministry and Justice and Ministry of Foreign Affairs, provided to Department 7 April 2017.
·Egypt Ministry of Justice Court Referral – Document Four
oFirst version – uncertified, provided with application 16 June 2014
oSecond version – certified, provided to delegate following request at Protection Visa interview 2 May 2016
oThird version – certified by Egypt Ministry of Justice, provided to Department 7 April 2017
oFourth version – certified by Egypt Ministry and Justice and Ministry of Foreign Affairs, provided to Department 7 April 2017.
·Egyptian power of attorney, applicant appointing [Mr G] 24 March 2014 – Document Five.
·Egypt Ministry of Justice Power of Attorney, applicant appointing [Mr E] 27 March 2014.
·Statement by [Mr E] (undated).
·Copies of the applicant’s FJP membership cards.

[2021] AATA 4223

24 August 2021

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