1716615 (Refugee)
[2021] AATA 2920
•28 May 2021
1716615 (Refugee) [2021] AATA 2920 (28 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1716615
COUNTRY OF REFERENCE: Egypt
MEMBER:Peter Vlahos
DATE:28 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 28 May 2021 at 9.38AM.
CATCHWORDS
REFUGEE – protection visa – Egypt – Coptic Christian – fear of persecution – harassment – parish activities – applicant’s ability obtain higher education and employment – father’s work as profession and in Egyptian military – decision under review affirmedLEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2Any 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 dependants.
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 30 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 11 August 2014. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 31 July 2017.
A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled for 6 April 2021.
The applicant was assisted at the hearing by an interpreter in the Arabic and English languages but not by a registered migration agent or legal counsel/lawyer.
The Tribunal had received notification that the applicant’s registered migration agent had been suspended by the regulatory authority for unprofessional conduct.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin
Based on a copy of the applicant’s passport, which was provided to the Department (Home Affairs) (“the Department”) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and has had her claims assessed against the country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
On the basis of the above-mentioned evidence before the Tribunal, the Tribunal accepts that applicant’s identity is as is claimed.
The applicant’s department file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the department’s decision to the Tribunal with the application of review.
Background – the applicant’s migration history
The applicant was granted a Tourist visa (TR-676) on 27 May 2007. [In] June 2007 the applicant arrived in Australia. [In] August the applicant departed from Australia. On 12 May 2012 the applicant was included in a Sponsored Family Visitor visa application which was submitted by her father. On 31 March 2012 the application for a Sponsored Family Visitor visa (UL-679) was refused by the Department. On 21 May 2012 the applicant was included in Sponsored Family Visitor visa application which was submitted by her father. On 5 July 2012 the Department granted the Sponsored Family Visitor visa application which came into effect on 1 October 2012. The applicant arrived in Australia [in] August 2012. On 1 October 2013 the applicant applied for a Sponsored Family Visitor visa (FA- 600) which was refused on 3 October 2013. On 20 March 2014 the refusal decision was set aside by the Migration Review Tribunal. On 2 May 2014 the applicant was granted a Sponsored Family Visitor visa (FA-600) [in] May 2014 the applicant arrived in Australia and on 11 August 2014 the applicant applied for a Protection visa (XA-866).
EVIDENCE AT THE HEARING
Background – Personal of the applicant
The applicant was born in Egypt and is [age]. She is not married. She is also a Coptic Christian. She has family in Australia which consists od her brother, who is an Australian citizen (and is married and has [children]). The applicant’s only other family member is her elderly father (who has a protection claim pending with this Tribunal). The applicant’s mother died in 2011. The applicant is an educated woman having completed her education while living in Egypt. While in Australia, the applicant told the Tribunal that she was working as a “[occupation]” at a “[workplace] for six (6) years.” Thereafter, she worked at different establishments as “[an occupation]”.
The applicant’s claim for Protection
The Tribunal noted that the applicant made the following written claims (similar claims were made by her father in his application for Protection, see AAT File no. 1716613) in her application for Protection vis which was submitted to the Department:[1]
[1] See Department of Home Affairs file no. [deleted], in particular folios [31]-[38]
§The applicant claims that because she is a girl from a Coptic Christian background in Upper Egypt, she has been treated badly by the Muslim majority. She was mentally traumatised and living with constant depression as a result of the daily torrent of sexual abuse and harassment. She developed a fear of public places. She was assaulted in high school. Some boys started throwing stones at Christian girls while they were walking home from school. At University, she did not wear a hijab, and was targeted for constant attacks by Islamists. There were no policies in place to ensure her safety and protection.
§An important part of her social activity was attending church. Shortly after she visited University, she became a servant in her church. She became an active member of a group called “Ekhwaat El-Rab” which helped needy people.
§Security and law and order disappeared after 2011 revolution. Harassment against her increased. The second revolution took place in June 2013. She was locked in her home due to the clashes between the military and police on one side and Muslim extremists and brotherhoods on the other. An increasing number of Copts in Upper Egypt, and El-Menya in particular, were targeted for physical abuse or kidnappings. There were many killings and seizure of property and forced payment of royalties.
§She started her first job on December 2013 [at a business]. The owner was Christian. It was not safe for her to work during the evening shift. She started having problems with a client [Mr A] who was a very strict Muslim. He started watching her and gave her a stack of Islamic CDs. Five days later he asked if she had listened to the CDs and she replied that she was not interested in them. He considered this reply an abuse. He told her he wanted to speak to her family and told her he knew her father and where she lived. He proposed marriage. She did not know what to do and ran away from her work. Her father called her employer and said that she was not going back. She stopped work [in] April 2014.
§She started helping her father in his business, working during the morning shift. [In] April 2014 when she and her father left their house, there were a couple of masked men on their motorbike. He father pushed her back into their home. They heard a number of gun shots fired towards them, which hit the door of the entrance to the house. Someone had written down the registration number of the motorbike and her father went to the Police to make a report. Her father kept the business closed. Christian businesses were constantly targeted after the removal of President Morsi. Five days later the police told them that they established that the owner of the motorbike was a person named [Mr A]. She recognised the name. The police investigated the matter further and they were told that the motorbike had been stolen and the owner had an alibi and witnesses. The police then closed the case due to lack of evidence. However, they did not feel secure and kept a low profile after that.
§When they arrived in Australia, her father was told by his brother that the shop was looted, and attempt was made to set it on fire. The police attended and were investigating. There were a group of people outside the shop who reported that the owner was misusing the shop and had been promoting Christians as presidential candidates. The matter progressed, and the police laid charges against them stating that they have been involved in government electoral activities.
§Egypt is now in turmoil and minorities have been caught in the middle. Many incidents against Christians have taken place all over Egypt. Christian properties and businesses and churches have been targeted and attacked. The police do not have control in the country.
§They have little hope of living peacefully in Egypt as there will be a trial against them for “preaching Christianity and contempt for Islam”. These charges are based on false allegations. They cannot relocate to any other areas as the Muslim Brotherhood and extremists are running a campaign against the regime and their main target is Christians all over Egypt, as they have been accused of supporting the current regime. The authorities in Egypt are not able or willing to protect Christians.
§She is in constant fear of persecution because she is a woman, which is compounded because she is a Christian woman. Women are routinely targeted for rape, abduction, sexual assault and harassment. She has experienced the torment of sexual harassment on a daily basis and it is impossible to attempt to prosecute every single case. There is a culture of impunity and assailants rarely face any consequences.
§She fears being persecuted because of her religion. She was unable to freely practice her religion without fear in Egypt.
§She also fears persecution due to her political opinion. Islamic values take precedence in both the political and legislative arena, and dissent is squashed. She is a firm believer in democracy, equality of men and women and individual rights. Adherents of those views are routinely attacked and persecuted as being a threat to Islam.
The applicant was asked by the Tribunal whether the claims made by her to the Department required any amendment, change or variation to be considered. In response, the applicant told the Tribunal that she did not have any changes to make to her original claims.
The ‘circumstances’ which led the applicant to come to Australia
The applicant stated that she had endured ‘verbal’ and ‘physical abuse’ from other ‘students’ when she had attended to her studies at high school. These ‘harassments’ were perpetrated against the applicant ‘on a daily basis’ and the applicant and her parents could not do anything about it.
Similar issues, the applicant told the Tribunal happened when the applicant chose to attend church services, religious events, or just normal church-organised social events. She told the Tribunal that he attendance at her local church was targeted by Islamists, who did not wish her ‘organisation’ – the ‘Brotherhood of God’ to carry on with its work – helping the destitute, sick and poor of her area.
The applicant said that she was (regardless of threats and verbal abuse) an ongoing member of her church’s ‘Brotherhood of God’.
What work did the applicant do for this group? The applicant said that her work giving sermons and providing ‘educative talks’ to ‘poor and underprivileged people’ in ‘her area’ where her church was situated. She also told the Tribunal that she provided ‘lessons’ to those in her group who were interested in ‘[subject]’ after all, the applicant had completed her Masters in ‘[subject]’.
The applicant also told the Tribunal, that despite the harassment because she was female and Coptic Christian, she had attended to her university studies and had managed after a considerable period of time to complete her Masters degree.
After studying at university, the applicant told the Tribunal that she was employed at a locally Christian owned business. The applicant enjoyed her work. However, all this ended (according to the applicant) when one the business’ clients ‘took an interest in her’. The applicant told the Tribunal, that a Muslim client, she identified as a [Mr A], one day presented her with a ‘series of CDs’ on the faith of Islam (religious CDs) at told her to listen to them and to learn. After a few days, the same person returned and (according to the applicant’s evidence) asked of her whether she had listened to the CDs he had provided her with. The applicant told him that ‘she was not interested in them or in learning about Islam’ because ‘she was a Coptic Christian’. The applicant also told the Tribunal that this person was interested in ‘marrying the applicant.’ The Tribunal was also told that this same individual had taken offence when the applicant told him that she was interested in him or in Islam.
Thereafter, the applicant told the Tribunal that she had more issues. Her employment became difficult to be continued at the place she was working. This was caused mainly because [Mr A] continually harassed her and even mouthed threats towards her because of her attitude towards him. This, all became too much, the Tribunal was told that she left her work and never returned there again.
Motorcycle incident
After this, she said that she worked with her father in the family’s local store. On morning, as the two were on their way to the store, the two noticed a motorcycle approaching them in a direct and threatening manner. What followed (according to the applicant) was that her father pushed her back into the apartment and ‘shots were fired at them.’ Neither of the two were injured. This incident was reported to the local police. What followed was a police investigation which determined that the ‘motorcycle used’ in the attempted assassination or kidnapping was “owned by [Mr A]” but “it had been stolen” and “used by others.” It was, according to the applicant, a ‘perfect alibi’ the police did nothing further with the matter.
The applicant’s father’s issues
The Tribunal was told that [Mr A] was known to her father.
Shortly after the ‘motorcycle incident’ the applicant’s father had applied for a ‘tourist visa’ to enable him to visit his son who lives in Australia.
While in Australia, news was provided to the applicant’s father that his shop had been broken into and later in absentia he had been accused by the local authorities as inciting political unrest and had ‘urged Christians to vote for Sisi.’ The applicant and her father told the Tribunal that this claim of ‘political involvement’ had been formally reported to the local authorities and as a result of this ‘alleged’ political involvement, the applicant’s father ‘had been placed on a watch-list for interrogation when he returned to Egypt. Further, the Tribunal was told (by the father) the ‘reason’ the police wished to interrogate him was that the local police unit had been ‘infiltrated’ by ‘supporters of the Muslim Brotherhood’ who had no regard for local Coptic Christians and who considered them responsible for what had happened to the previous government.
According to both the applicant and her father, the local police had no interest in keeping law and order in general safe for ‘all’ but wanted to make life ‘difficult for Christians’.
Applicant’s claims of sexual abuse
The applicant told the Tribunal that she had attended her local primary/high school for her education and that school only had 4 to 5 known Coptic Christians, the rest, the majority were Muslims.
The applicant told the Tribunal that attending school was a difficult time for her because she had to endure physical and verbal abuse. Also, when leaving school to go home, the applicant recalled that she would attract the abuse of ‘Muslim men’ who verbally abused her while at time she had her ‘hair pulled.’
The applicant then told the Tribunal that she had been a victim of ‘sexual abuse.’ The Tribunal asked the applicant to describe in detail what happened? The applicant stated that “as I was leaving school” a Muslim man “turned to touch me” and when she realised this she quickly ran home.”
Was there other abuse against her person? In response, the applicant told the Tribunal that on another occasion, she “had stones thrown at her”.
According to the applicant’s evidence, she had experienced these incidents [as described in paragraphs (34) and (35)] “more than once.”
The applicant also recalled constant ‘daily verbal abuse’ from fellow students – male and female and this ‘abuse’ continued throughout “her education”.
The applicant acknowledged that this all happened during the Mubarak administration, but even so, (according to the applicant) “problems with Muslims existed” and even during this time, the applicant was “…subjected to such harassments…” because of her religion.
Problems attending Church and other Church ‘religious’ activities
The applicant told the Tribunal that attending her local church which was “only fifteen minutes” from her home was “…very difficult…” At times, because of these public harassments, the applicant and her family often ‘changed’ the days they would attend their local church’s services.
The applicant told of her involvement with her church’s youth groups. She described her activities in the youth group as – an opportunity for her to meet other fellow Copts and would together discuss passages from the Bible and collective pray.
At this ‘youth’ group, the applicant said that she would also assist ‘poorer members of the community’ by providing ‘her time’ to ‘give lessons’.
The applicant also told the Tribunal that while [at] University [she] also was actively involved in “…missionary work…”
Political problems
The applicant told the Tribunal after she and her father had report [Mr A] to the police and the false alibi accept expected retribution in return. This retribution came when in Australia, the applicant’s father’s shop was reported as “ransacked” by local radicals. The applicant and her father told the Tribunal that this came to their attention when her uncle told her father. The applicant and her father also told the Tribunal that it was “alleged by the authorities” that on the premises they had “found political literature” which was “trying to influence” local Muslims to “support the Sisi Presidency…” Moreover, the Tribunal was told that as a result of this information provided to the local authorities, they have considered making the applicant and her father – ‘persons of interest…’
The applicants also told the Tribunal that there are “documents” which confirm that they ‘both under investigation’. The applicants told the Tribunal that ‘they know’ of this investigation because they ‘have been told by the Archdiocese’s lawyer. However, the applicant’s told the Tribunal that getting copies of such documents is very difficult but they have been told that “…all know the case [against them both] is still open…” and that it “…can be reinstated…when they (the applicants return to Egypt)…” The two applicants were clear – accordingly “…the case against them is still open…”
The applicants told the Tribunal that it would be very difficult for two Christians to prove their innocence in this matter when most of the local authorities are not totally in support of the Christian minority.
The applicants also said that the authorities claimed that they had found some “mobile texts” to which “support for Sisi” could be seen.
Threats to the applicant’s fiancé
The applicant also told the Tribunal that at that time, she was in a relationship and that her [then] fiancé had received threats because of his relationship with the applicant. The applicant explained to the Tribunal that after coming to Australia, she told her fiancé that she could not continue with the relationship and it ended.
Visitor visa and the MRT appeal
The applicants were both asked to ‘explain’ what occurred and ‘what was said’ at the Migration Review Tribunal hearing concerning the ‘refusal of their visa. The applicant’s father told the Tribunal ‘that at that time matters were not that bad as they later became in Egypt.’ The daughter told the Tribunal that incidents against Christians occur and they always have cause to be fearful of what happens next. No other explanation provided.
COUNTRY INFORMATION – LAW AND ORDER – FREEDOM OF RELIGION AND WORSHIP – COPTIC CHRISTIAN MINORITY
Political events in Egypt from January 2011
On 25 January 2011 Egyptians took to the streets to protest against President Hosni Mubarak’s 30-year rule. In February 2011 following anti-government protests in Cairo, President Mubarak stood down from office. Two days later, the Supreme Council of the Armed Forces (SCAF) assumed full legislative and executive powers.[2]
[2] CX280443: Human Rights Watch World Report 2012 Egypt, Human Rights Watch (HRW), 1 January 2012
On 9 October 2011, 24 people, mostly Coptic Christians, died in clashes with security forces. Reports suggest a protest march by Christians over an attack on a church erupted into violence, with reports of chaotic scenes as Muslims ran into the streets to help defend the Christians against the police, while others said they had joined clashes to help the army quell the protests in the name of stability.[3]
[3] CX274649: “Cairo clashes leave at least 24 dead”, Guardian (Unlimited) (UK), 9 October 2011; CX2740: 24 dead, hundreds injured as Cairo erupts, Sydney Morning Herald, 11 October 2011
In June 2012, presidential elections were held, and Mohammed Morsi was elected. However, Morsi drew criticism for his perceived inability to improve Egypt’s economic situation and increasingly authoritarian tendencies. The following months saw sporadic, large scale protests, fuelled by a widely-held view that Morsi was an ineffective leader and served the interests of the Muslim Brotherhood rather than those of the country.[4]
[4] DFAT Country Report Egypt, Department of Foreign Affairs and Trade, 28 January 2014
On 30 June 2013, after Morsi had been in office for one year, mass anti-government protests commenced. Millions of Egyptians participated in the protests held across the country, calling on the president to resign. Protesters charged that Morsi monopolised power and failed to resolve Egypt’s economic problems. On 3 July 2013, President Mohammad Morsi was removed from office by the Egyptian military. During the pro-Morsi demonstrations that followed the ousting, hundreds of Muslims Brotherhood members and supporters were arrested and scores of protesters were killed by security official.[5] Egypt declared a month-ling state of emergency after clashes between security forces and Morsi supporters. The Muslim Brotherhood alleged more than 2000 people died on 14 August 2013 when security forces stormed two protest camps in Cairo.[6] On 23 September 2013 a Cairo administrative court ruling officially banned the Muslim Brotherhood. All Brotherhood activities, subsidiary organisations and any organisations funded by the Brotherhood became illegal under the ruling, dealing a crippling blow to the Islamist organisation’s community services and grassroots support system.[7]
[5] CR801F5B679: Egypt: The Overthrow of President Morsi, 18 July 2013
[6] CX313074: Egypt declares national emergency, BBC, 14 August 2013
[7] CX314531: Muslim Brotherhood banned by court ruling, Mada Masr, 23 September 2013
In June 2014, Abdel Fattah al-Sisi, the military general who toppled Mohammed Morsi claimed victory in the presidential election with more than 96 % of the vote.[8] The Sisi Government’s strong emphasis on internal security has largely restored general law and order throughout most of Egypt. Large-scale ongoing protests such as those experienced in 2011 and 2013 have declined considerably.[9]
Situation of Christians in Egypt
[8] CX1B9ECAB5945: Egypt in Focus – President Sisi in Power, Atlantic Council, 6 October 2014
[9] CISEDB50AD4203: DFAT Country Information Report – Egypt, Department of Foreign Affairs and Trade, 19 May 2017.
According to 2013 US International Religious Freedom Report, Egypt’s population is estimated to 85.3 million. Christians constitute approximately 10% of the population, with the majority belonging to the Coptic Orthodox Church. Christians reside throughout the country, although the percentage of Christians is higher in Upper Egypt and in some sections of Cairo and Alexandria.[10]
[10] OG54B544653: Egypt – International Religious Freedom Report 2013, US Department of State, 28 July 2014
Following the January 2011 popular uprising, the lack of adequate security in the streets reportedly contributed to lawlessness in parts of the country, particularly in Upper Egypt, where many of Egypt’s Coptic Christians live.[11]
[11] CX314540: EGY15127 Egyptian Coptic Christians, Australia: Department of Foreign Affairs and Trade (DFAT), 23 September 2013
According to a DFAT report released prior to the removal of Morsi in June 2013:[12]
Since the 2011 revolution, post has been aware of reports of harassment and intimidation of Copts and/or non-conservative Muslims by more conservative Muslims….
It is possible that, if in many such cases, extremist individuals and groups in society have been emboldened by the ascendancy of Islamist political parties. The rise in these cases since the revolution is also related to the relative (in some areas absolute) lack of law enforcement presence, both in major cities and elsewhere in the country – this has contributed to a general rise in harassment, opportunistic crime and civil disorder in the country.
[12] CX312157: RRT Country Information Request EGY41897, Australia, Department of Foreign Affairs and Trade (DFAT), 4 April 2013
After the removal of Morsi on 3 July 2013, the tense and diverse political and security situation precipitated a wave of attacks against Coptic Christians, who were reportedly partly blamed for the removal of Morsi.[13] Coptic Christians were reportedly living in fear due to a string of attacks against churches, businesses and homes.[14]
[13] CR801F5B679: Egypt: The Overthrow of President Morsi, Issues Paper, Egypt, Country of Origin Information Section (COIS), 18 July 2013
[14] CX313313: Egypt’s Coptic Christians living in fear, France 24, 16 August 2013
A report published by DFAT dated 23 September 2013 notes that the security situation was calmer as of 22 September 2013, with an observable decrease in the level and scale of violence. This was probably attributable to the imposition of a state of emergency and a curfew across much of the country, along with a widespread police and military crackdown on more extreme Islamist supporters of the former President Morsi.[15]
[15] CX314540: EGY15127 Egyptian Coptic Christians, Australia: Department of Foreign Affairs and Trade (DFAT), 23 September 2013
A November 2015 DFAT report comments on state protection for Copts:[16]
DFAT assesses that on a day-to-day basis in urban areas, the state has a capacity and willingness to provide protection to the Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered to Copts by individual security officials.
[16] CISEC96CF13957: DFAT Thematic Report, Egyptian Copts, Department of Foreign Affairs and Trade, 24 November 2015
DFAT released a report on 19 May 2017. This report states that large-scale anti-Christian violence ended in the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters.[17]
[17] CISEDB50AD4203: DFAT Country Information Report Egypt, Department of Foreign Affairs and Trade, 19 May 2017
The May 2017 DFAT report also commented on communal violence:[18]
Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. High-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which as a sizeable (approximately 40 percent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya…
Incidents of communal violence continue in 2016. Many of the incidents took place in Minya, including physical assaults of Christians and looting and destruction of Christian property.
Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. However, lower-level Church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims.
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.
[18] Ibid DFAT Country Information Report Egypt, 19 May 2017
In DFAT’s Country Information Report – Egypt (2019) the following is reported concerning ‘communal violence’:
Communal Violence
Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. 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.
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. A November 2014 government report into the anti-Christian violence found that 29 people had died in communal-related killings, 52 churches had been completely razed, another 12 damaged, and numerous Christian-owned properties destroyed. Most, but not all, of the incidents were marked by a slow police response, which may have been in part the result of police and security personnel being otherwise engaged in protecting government institutions. Large-scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years.
The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya. In one particularly high profile incident in May 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine.
Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. In December 2018, the government announced it would form a higher committee tasked with developing a general strategy to prevent and confront communal incidents. While acknowledging Sisi’s personal engagement on the issue, Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.
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.
The same report, states the following for the current situation for ‘Christians’ (Copts) in Egypt:
Christians
3.31 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.
3.34 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.
3.35 Minority Rights Group International estimates that there are between 1000 and 1500 Jehovah’s Witnesses living in Egypt. Although the denomination is not officially recognised, authorities permit its members to meet privately in gatherings of fewer than 30 people). Jehovah’s Witnesses are banned from importing religious literature such as Watchtower publications, which are a key part of religious instruction and practice for Witnesses.
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.
Construction and Restoration of Churches
3.17 Church building is one of the most sensitive communal issues in Egypt. It has traditionally been very difficult to build a new church in Egypt, as local authorities have imposed convoluted processes to request permission and then ultimately refused the building permit. In contrast, the law does not stipulate any government role in reviewing the number or size of mosques, and no approval is required for mosque renovation. DFAT understands that there are approximately 2,800 registered churches throughout Egypt, compared to nearly 110,000 mosques.
3.18 In August 2016, the parliament passed law 80/2016 required by Article 235 of the constitution to allow Christians to build and renovate churches. The law requires the size of a church to be ‘commensurate with’ the number of Christians in the area. Because there are no official statistics in relation to the size of religious communities, determining the size of local Christian communities is difficult and most likely arbitrary. The power to approve requests is exercised by local governors, who must respond to a request to build or renovate a church within 120 days. Refusals must include a written justification. There are no appeal mechanisms.
3.19 Local contacts have reported that the 2016 law was welcome, but that implementation at the local level had been problematic in some areas. These contacts reported that the Coptic Church had presented requests for over 2,500 existing unlicensed churches and affiliated buildings following the passing of the law, but (as of October 2018) authorities had only approved around 200 applications. Local sources report that authorities had refused to grant permits in sensitive areas (including the Upper Egypt cities of Minya, Luxor, and Esna) due to strong opposition from local Muslims, and had closed up to 12 churches in these cities in defiance of the new law. In less sensitive areas, however, authorities had granted permits for around 50 new churches to be built and had made large areas of previously uninhabited land available. The Ministry of Housing also reportedly issued an order in January 2018 permitting Christians to practice their religious rites at unlicensed churches pending the legislation of their status. Local media and some international religious publications have reported that the government has recently approved the construction of up to 170 new churches. President Sisi inaugurated a new cathedral outside Cairo in January 2019 (the largest cathedral in the Middle East).
3.20 The government has rebuilt a number of churches and other church-owned properties destroyed or damaged in mob violence in 2013. The Saints Peter and Paul Church in Cairo was also repaired after a December 2016 suicide bombing that killed 29 people (see Security Situation). The government has funded a church in al-Our village in Minya in honour of 20 Copts beheaded by an Islamic State-affiliated militant in Libya. In Alexandria, the main synagogue is undergoing extensive renovations paid for by the Egyptian Government (estimated USD $5 million) with a renovation team comprised of technical specialists.
Terrorist Attacks on Christians
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.
State of Emergency
2.41 Article 154 of the Constitution grants the president the power to declare a nation-wide state of emergency after consultation with Cabinet and with the approval of Parliament. President Sisi declared a state of emergency on 9 April 2017 (immediately following the Palm Sunday bombings), which Parliament approved unanimously two days later. The government has subsequently issued a number of extensions to the state of emergency, most recently for a period of three months commencing on 25 April 2019. Article 154 stipulates that the maximum time allowable for a state of emergency is three months, extendable once for an additional three-month period by a two-thirds majority parliamentary vote. The government has effectively circumvented this provision by letting the state of emergency expire once it has reached its six month maximum, allowing an interlude of two to three days, and then declaring another state of emergency.
2.42 The state of emergency is governed by Law 162/1958 (the ‘Emergency Law’). The Emergency Law grants the president extraordinary powers, including the power to refer civilians to State Security Emergency Courts for the duration of the state of emergency (see Military Courts and State Security Emergency Courts). It also extends the powers of the president to monitoring and intercepting all forms of communication and correspondence, imposing censorship prior to publication and confiscating errant publications, imposing a curfew for (or ordering the closure of) commercial establishments, and the sequestration of private properties. Article 4 of the Emergency Law grants the Armed Forces the authority to address any violations of these powers. Authorities have increasingly used state of emergency laws and courts against critics of the government, including political opponents, human rights defenders, and the media (see relevant sections).
FINDINGS AND REASONS
The Issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes the cautionary note sounded by Foster J at 194:
…. care must be taken take an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could be reasonably have been accepted ….
The Tribunal also accepts that “…. if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt….” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]):
…. The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts….
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves and an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind if it makes and adverse finds in relation to a material claim by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 347).
Is the applicant a ‘refugee’ within the meaning of s.36(2)(a) of the Act?
The applicant claims that she is a Coptic Orthodox Christian and belongs (together with her father and immediate family) to the Coptic Orthodox Church. On the basis of the information provided in her evidence before the Tribunal at the hearing, the Tribunal is satisfied and finds that the applicant and her father are Coptic Orthodox Christians.
Further, the applicant claims that she fears harm due to her religion as a Coptic Christian. She claimed that she was not free to practise her religion without fear in Egypt. She also claims that, as a Coptic Christian woman, she fears abduction, sexual assault, and harassment. The applicant also fears persecution due to her political opinion. As a Coptic Christian adhering to progressive opinion she fears being targeted by radical supporters of Islam, and in particular, the ‘Muslim Brotherhood’. For these views, the applicant claims that she is the subject of investigation by the local police after political material was found on certain mobile devices in her father’s shop. In the Tribunal’s opinion as will be observed in the reasons for decision that follows, the applicant’s version of events lack credibility.
Similar claims were made by her father in his application for Protection visa.
The Applicant’s claim being targeted by a Muslim asking her to change her Christian beliefs and to convert to ‘Islam’ for the purpose of marriage
The applicant claimed that she faced problems at her workplace while in Egypt. She told the Tribunal that from December 2013 she was employed [in] a company which was owned by a Coptic Orthodox Christian. She told the Tribunal that a particular client of the company (a Muslim) took an interest in her and began giving her Islamic books (‘religious in nature’) and a ‘stack of CDs’ to listen (again of a religious nature). He also, over a period of time, told her of his ‘feelings for her’ and ‘told her to adopt the Islamic religion’ and to ‘dress’ her person according to the Islamic religion. The prospect of marriage was also raised according to the applicant. The Tribunal was told that the applicant humoured this individual at first, and thereafter when his actions towards her persisted, she left her place of employment (in panic) – on or about mid-April 2014. Thereafter, she went to work for her father in his own local telecommunication business.
A few days later, after the applicant commenced working for her father, when she and her father were on their way to the business (shop) ‘two individuals (with masks) on a motorcycle shot at them’. Both, the applicant and her father escaped injury. The Tribunal was told that this incident had ‘witnesses’ who had recorded the motorcycle’s details and reported the incident to the local police. The police did their investigations and found that the motorcycle was owned by the individual that had asked the applicant to become a Muslim and to marry him. The Tribunal was also told that the incident was denied by this person who claimed (as an alibi according to the applicant) that his motorcycle had been stolen by unidentified persons. The Tribunal was then told that the incident investigation was ‘closed by the police’. The applicant’s evidence relating to the claim, is in the opinion of Tribunal not credible. The applicant claimed that she was either a victim for ‘assassination’ (there were shots directed at her and her father) or a possible victim of ‘abduction’. Indeed, if that was the case – the truth of the matter as the applicant would want the Tribunal to conclude, the applicant would not have continued to remain and to reside in the same area which she claims her life was directly threatened by an obsessed (with her) male Muslim – immediately after, the local police had ‘closed their investigations’. The applicant and her father (the alleged victims) however, remained in the area until they left Egypt (on a Sponsored Family Visitor visa) which was granted to them on 2 May 2014. In other words, the applicant and her father chose to remain in the area of an alleged attack for a further month. A person, in genuine fear for their life and well-being would use every opportunity available to them, once (as they claimed) police protection had been withdrawn to flee from the area for as long as the ‘threat’ persisted. According to the applicant’s evidence to the Tribunal, the threat had not abated – it was real and probable, but she and her father stayed in their home area until they left for Australia. These actions in the opinion of the Tribunal are not the actions of persons who fear ‘harm’ or ‘persecution’ from others for the reasons they claim. More to the point, the Tribunal is of the opinion and finds, that ‘this attack’ and the ‘whole claim’ of an Islamic ‘jilted lover’ was nothing more than an embellishment of the truth by the applicant and her father to attract Australia’s protection obligations for the reasons provided for by s.5J of Act.
The applicant’s claim of being targeted for her political beliefs
The applicant (and her father) claimed that [in] May 2014, the day they left Egypt for Australia, there were mass demonstrations by the Muslim Brotherhood in the major cities of Egypt. They claimed after their departure from Egypt, the applicant’s father’s business was ransacked. In her interview to the Department the applicant told the Department’s delegate, that “as they were leaving [she] saw the demonstration which was happening in front of the Muslim Youth Union or Association, El Minya’. In her evidence to the Tribunal, the applicant did not provide any description of the situation in Egypt on the day of her departure or that she had witnessed demonstrations occurring. That detail was missing in her recollections to the Tribunal. What was told to the Tribunal by the applicant was that her uncle had told her father when the two were in Australia that the applicant’s father’s shop had been ransacked. The applicant and her father (in his evidence) were not specific as to who ransacked the business premises, but they assumed it was local Muslim fanatics which had targeted the premises because it was a business owned by a Coptic Orthodox Christian. Again, the alleged reasons for the applicant and her father being the victims of Islamic fanatism is very vague in the Tribunal’s opinion. In her evidence to the Tribunal, the applicant claimed that she was very active at her local church and had committed a considerable period of her personal time in ‘educating’ the ‘poor people’ in computers in her area and also was conducting some bible instruction. The evidence of her ‘church activities’ could not (as presented to the Tribunal by the applicant in her evidence) be described as the applicant being openly committed to acts of religious conversion of others (non-Christians) or actively proselytising others on the teachings of the Coptic Orthodox Church on behalf of her local Church. Moreover, her description of her church activities were not of such a nature as to create for her an ‘adverse profile’ with local religious-inspired fanatics which might be present in the area or that she had some ‘well-known community profile’ that would attract any other adverse attention. Especially, of the kind the applicant has claimed in her evidence before the Tribunal. Her activities were teaching computers to ‘poor people’ on church premises and participating in religious instruction classes with other fellow Coptic Orthodox Christians. So, the ‘targeting of the applicant’ or more particularly, her father’s business premises is difficult to accept that it was caused by either of them having some significant known community/public profile which would place either of them or both of them in harms way for reasons of their religious beliefs. Therefore, the Tribunal finds that the applicant (and her father) has not a well-founded fear of harm or persecution from Islamic fanatics (associated or part of the Muslim Brotherhood) for reasons of her (their) religion, being Coptic Orthodox Christians or for reasons of the work she (the applicant) was doing with poor people on behalf of her local Coptic parish or church or for any other reason or reasons pursuant to s.5J of the Act.
Ransacking of the applicant’s father’s shop and its ‘consequences’ as claimed by the applicants
It was also claimed that the ransacking of the applicant’s father’s business premises was reported to the local police who did investigate the incident. In the course of the police investigation it was claimed that the police found mobile devices which had been left on the premises for repair (by third persons) and these devices had political text messages encouraging people to vote for a particular presidential candidate. It was then claimed by the applicant and her father that for this reason, ‘she and her father were on a police list and would be arrested if they returned to Egypt.’ The applicant’s evidence relating to this claim that she and her father were the subjects of an official police investigation is not credible in the opinion of the Tribunal. The Department’s decision record states that “in her written statement, she [the applicant] claimed that the matter has been progressed to the stage that the police “laid charges against [us] stating that [we] have been involved in some governmental electoral activities.” It was further noted by delegate, that the applicant ‘was asked several times if charges had been laid against her [and] she did not answer this question.’ At the hearing, the applicant was asked by the Tribunal to explain this police investigation. More to the point, the Tribunal asked for the presentation of documents. In other words, for evidence that an official investigation had occurred and that charges made. The Tribunal was told by the applicant an investigation had occurred – a report done but the applicant and her father “did not receive [this] (the ‘report’) personally…” The Tribunal was also told that the “…lawyer of the Coptic Church Archdiocese tried to get the document (the report).” The Tribunal asked the applicant and her father, “have you got the documents stating that charges were pending?” The applicant’s response was that “…I cannot ask for that…” The applicant then told the Tribunal “…all we know is [that] the case is still pending…” Further, that “the case will be reinstated…” and that “…the case is still open…” for when the two of them returned to Egypt.
Following these remarks to the Tribunal’s request for further information, the applicant’s evidence as her responses indicate in relation to the claim about the police investigation (concerning the alleged political text messages on mobile phones found on her father’s business premises) was (in opinion of the Tribunal) very unclear and vague. The applicant could not provide information about her (and her father’s legal situation which she claimed was pending or could be reinstated when they returned to Egypt), that is, whether she or her father have been charged or convicted of any offence under the Egyptian criminal law or any ordinance or regulation due to the imposition of (ongoing) state of emergency. The Tribunal is of the opinion that a person or persons who claimed that they were on a police ‘watch list’ or had been the subject of police investigation and ‘would be arrested on return’ (to their country of origin) would be able to provide more details about why they would be arrested. They would have some documentary evidence to submit for the Tribunal to consider. Nothing was forthcoming in this instance from the applicant or her father. It should be noted, that since the applicant’s protection visa had been rejected by the Department on 30 June 2017, the applicant (and her father) had a considerable period of time to enable them both to make their own attempts in order to retrieve all the evidence (written) which was available to substantiate their claim (and this claim in particular) but nothing was attempted. Therefore, the Tribunal does not accept this claim as credible. That is, that the Egyptian police would examine all the messages on phones held for repair in the applicant’s father’s business premises and would hold the applicant and her father responsible for these text comments on the mobile phones owned by customers (third persons). Also, the Tribunal does not find credible that the police would investigate an owner of a shop if political messages were found on mobile phones being held for repairs owned by others and the Tribunal does not accept as credible and finds that the police would not place someone (the applicant and her father in this case) on a ‘police watch list’ for this reason alone. Hence, the Tribunal finds that the applicant has not a well-founded fear of persecution for reasons of any political messages found on other peoples’ mobile phones as she (and her father claimed) or for her (and her father’s) political opinion as Coptic Orthodox Christians or for any other reason for the purposes of s.5J of the Act.
Applicants’ Migration Review Tribunal (MRT) evidence
It was also noted by the Tribunal that the applicant’s last Visitor visa application was subject to a refusal by the Department. An MRT (Migration Review Tribunal) appeal was lodged and on 19 March 2014 by the applicant’s father and sponsor gave evidence to that Tribunal by telephone. The evidence provided by the applicant’s father was that he intended to visit Australia and then to return to Egypt. This evidence was provided to the applicant at her interview with the Department and her response was to tell the delegate that ‘incidents’ occurred at ‘different times’ or on ‘a regular basis’. This information was also put to the applicant (and to her father) by the Tribunal. In response, both applicants told the Tribunal that what they experienced later did occur as the situation was fluid and subject to constant changes and it did happen but later and was the cause for them to leave Egypt. The Tribunal did not receive a clear response as to how the situation was stable in March 2014 (when the visa application refusal was heard by the Migration ReviewTribunal) and that the problems both the applicant and her father faced occurred only a month or two before they decided to leave for Australia.
Claims for ‘sexual abuse’
Finally, the applicant claimed that she was a victim od ‘sexual abuse’ by an unknown stranger in the street while she was leaving school for home. The Tribunal questioned the applicant about this claim with sensitivity and concern. It asked the applicant could she describe the “sexual abuse” for the Tribunal to better comprehend her concerns and future fears. In response, the applicant described the “sexual abuse” she experienced as ‘a stranger in street touched her and then ran away…’ She then told the Tribunal that on other occasions she would be verbally abused or had ‘stones thrown’ at her person. The country information on Women in Egypt does provide information of instances of violence against women to happen on wide scale in today’s Egypt. According to the country information, rape, sexual harassment, and other forms of sexual and gender-based violence are all strongly prevalent in Egypt. A 2017 survey by Thomson Reuters Foundation found Cairo the world’s most dangerous megacity for women.
Article 267 of the Criminal Code makes rape o crime punishable by death. The legal definitions for rape and sexual assault are weak, however, and rape within marriage is not a crime. Women’s rights activists estimated that tens of thousands of incidents of rape occur annually, very few of which result in conviction. Human rights observers report that authorities generally treat allegations of rape and sexual assault as ‘social nuisance’ rather than a crime to be prosecuted, and rarely make serious attempts to prosecute those responsible.[19] ‘Sexual harassment’ is a frequent occurrence for women across the socio-economic spectrum. A 2013 UN Women study found 99.3 per cent of Egyptian women had experienced sexual harassment, while 91.5 per cent reported experiencing unwanted physical contact.[20] In this instance, as described by the applicant, the Tribunal does not accept that what was described by the applicant was an assault or ‘sexual abuse’ as the applicant claimed. It is simply – as it was described not credible. Indeed, as it was described to the Tribunal – a stranger touched her and ran away. No other details were provided by the applicant concerning this ‘sexual abuse’ nor did the applicant appear disturbed when recollecting this incident to indicate a more serious issue. Moreover, her details or the description of the incident itself was very vague in the Tribunal’s opinion and this leads the Tribunal to find and to conclude that this incident as described was not such an incident but one provided by the applicant in order to enhance her protection claim.
Claims of discrimination
[19] see DFAT Report Country Information – Egypt, 17 June 2019 at p.7 June 2019 at p.30 see paragraph [3.81] – [384]
[20] Ibid Country Information para [3.83]
The applicant (and her father) claimed that there is ‘discrimination’ against Christians in Egypt. The Tribunal accepts (as it indicated earlier in this decision) that it accepted that the applicant and her father, as Coptic Orthodox Christians in Egypt has (both) experienced some kind of discrimination. However, the Tribunal does not accept that the discriminatory treatment, even when considered cumulatively, amounts to the kind of persecution involving ‘serious harm’ as is required by s.91R (1)(b) of the Act. Although the applicant recollected in her evidence before the Tribunal, incidents in which she was treated differently form other people, for example at school, in her neighbourhood and at University, the reality is that she was able to complete her studies and also to gain employment while in Egypt. The same could said for the applicant’s father. He is, as he claimed, a retired [professional] who had previously worked in the Egyptian armed forces and since his retirement, he has worked in his own local business [which] has two employees. He also owns two rental properties, in Cairo and Minya.[21]
[21] see the Department’s decision record (Department file no. [deleted]) at p.7
For the reasons provided in paragraphs [71] to [79] above, the Tribunal does not accept that the applicant (and her father) were forced to leave Egypt because the applicant had experienced threats from a former client of her employer who was a devout (fanatical) Muslim who wished to make the applicant convert from Coptic Orthodox Christianity to Islam for the reason that he wished to marry her, as was claimed , nor that there is a real chance that the applicant will face persecution involving serious harm because the applicant had been targeted by local Islamic groups due of her work in her parish church with the poor, nor because of political texts supporting certain presidential candidates found on mobile phones left for repair at her father’s shop that had been ransacked by Muslim mobs (owned by third persons) making the applicant (and her father) a ‘person of interest’ having a political opinion threatening the current political order in Egypt, nor that the applicant had been a victim (as she claimed) of ‘sexual abuse’ by a stranger in the street that ‘touched her and ran away’. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined by s.5J of the Act.
For the reasons provided above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has also considered the alternative criterion the Act provides for – that being the complementary protection in s.36(2)(aa) of the Act. For the reasons given by the Tribunal in paragraphs [71] to [79] above, the Tribunal does not accept that the applicant was forced to leave Egypt for being a female Coptic Christian involved in extensive parish activities with the poor in her local area, nor that she was a victim of random ‘sexual abuse’ in the street while returning from school committed by a stranger, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that she will suffer significant harm because she refused to convert to Islam or that she would be accused of having been involved in political activities (and political opinion) against the Egyptian state because political text messages had be found by the authorities on mobile phones belong to unidentified third parties which had provided these phones to her father to repair. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…
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 or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Appeal
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