1719831 (Refugee)

1719831 (Refugee) [2021] AATA 4558 (27 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719831
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Peter Vlahos
DATE:27 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 27 July 2021 at 8.00am.
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian man’s relationship or friendship with Muslim woman – applicant attacked by her family – complained to police and obtained restraining order – woman disappeared, her family accused and threatened applicant and police investigated – workplace harassment and discrimination – credibility – first arrived on prospective marriage visa – relationship failed and applicant returned to home country – departed again while investigation in progress – vague claims, evidence and timeline – provenance of documents – behaviour of interpreter and standard of interpretation at protection visa interview – country information – effective protection measures – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 5H(1), 5J(1), (2), 5LA, 36(2)(a), (aa), 65, 91R(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Drake v MIEA (1979) 46 FLR 409
Guo v MIMA (1996) 64 FCR 151
Kopalapillai v MIMMA (1998) 86 FCR 547
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423
MIEA v Pochi (1980) 44 FLR 41
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 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 14 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 7 April 2015. 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 29 August 2017.
A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled for 15 April 2021.
The applicant was assisted at the hearing by an interpreter in the Arabic and English languages and was legally represented by his registered migration agent, [Mr A], from [Law firm].
The applicant provided no witnesses for examination at the hearing or any prepared witness statements.
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 origins and personal identity
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal[1]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 his claims assessed against that country in relation to section 36(2) (a) and 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal further accepts and finds the applicant’s identity as is claimed for the purposes of this decision.
Department File before the Tribunal
[1] see AAT File and the Department of Home Affairs File no. [Number 1], see certified copy of Egyptian Passport no. [Number 2]
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 record of decision. The applicant provided a copy of the departmental decision to the Tribunal with his application for review.
Background – the Applicant’s migration/visa history
[In] August 2014 the applicant arrived in Australia on a [Prospective Marriage] visa. On [Date 1] March 2015 the applicant departed Australia. On [Date 2] March 2015 the applicant arrived in Australia on his [Prospective Marriage] visa. On 7 April 2015 the applicant applied for a Protection (Class XA, Subclass 866) visa and was provided with the associated bridging visa.
EVIDENCE AT THE HEARING
The applicant (through the interpreter) told the Tribunal that he was a resident of Cairo, Egypt. He had lived in Cairo “all of his life” which he accounted was approximately, “[Number] years”. The applicant told the Tribunal that he has family living in Egypt which consisted of his “mother, his brother and his wife and their son (nephew).” Prior, to his arrival ibn Australia, the applicant told the Tribunal that “he had many jobs, but his last place of employment was a local [workplace]”.
The Applicant’s claims for Protection
The applicant provided the Department with the following claims:[2]
§The Applicant claims he is a Coptic Christian born in Cairo, Egypt
§He claims he had a relationship with a Muslim girl and that her family attacked him, and he reported it to the police.
§Since he was attacked, the girl has disappeared, and her family accused the applicant of being behind the disappearance. They started threatening him, and reported him to the police, so he fled Egypt.
§The applicant fears the family will harm or kill him, and that he will not be protected by the state because he is a Christian.
§The applicant fears he would be more severely penalised if he was found guilty because he is a Christian.
[2] see Department of Home Affairs File no. [Number 1]
The applicant attended a Protection visa interview on 22 June 2017 and was assisted at that interview with the help of an Arabic interpreter (ID number [Number 3]). The applicant’s legal representative was also in attendance. The department records in its decision record, that the applicant “provided two photocopies of documents in Arabic, which were untranslated.”[3]
[3] Ibid, see decision record in AAT file or Department of Home Affairs File no. [Number 1]
The Tribunal was told that the applicant first arrived in Australia [in] August 2015 on a “Prospective Partner visa”. The applicant went on to explain that “everything was going fine between him and his prospective wife” but after he “arrived here” the relationship could “not continue” because “there were differences and problems.” According to the applicant, his prospective spouse “did not want to continue” with the relationship.
After the prospective marriage failed to proceed as the applicant wanted, he told the Tribunal that he “left Australia in March 2015” and “returned to Egypt”.
The Tribunal was told that after the applicant returned to Egypt, he in haste organised himself for his departure from Egypt.
The applicant was asked by the Tribunal to explain – what occurred while he was in Egypt to require him to leave Egypt for Australia (for a second time)? The applicant told the Tribunal, that when he left Australia “[I] was in an emotional condition about the girl [I] had loved…” The applicant went on to tell the Tribunal, that “[the girl] had left me…” and this had “emotionally destroyed him…” so he decided to “return to Egypt and to work…”
The applicant told the Tribunal that once he had returned to Egypt and to his work at the [workplace], “[he] noticed that his [work] colleagues had changed…” The applicant explained that the [workplace]’s manager had told him “not to return to work…”
The applicant went on to tell the Tribunal that “…when he decided to leave the [workplace] for Australia to get married …his Muslim colleagues…humiliated him…” The applicant recalled to the Tribunal the comment made (amongst others) for example, “…you (the applicant) are an ‘infidel’ person because you are marrying a in a ‘Christian country’….”
The applicant then told the Tribunal, that ‘Christians’ in Egypt were “…not well treated …” He went on to state, that “they [his colleagues at the [workplace] where he worked] made it clear to me [the applicant] that they wanted to ‘kick him out’ of the [workplace]…”
The applicant went on to tell the Tribunal that his colleagues discriminatory and racist attitudes towards him caused him to leave his place of employment.
He, also emphasised the point to the Tribunal, that his colleagues (the majority, being Muslims) “…did not want him to have his job at the [workplace]…’
The Tribunal was told that the ‘gossip’ about the applicant, that he was “leaving to come to Australia to marry a ‘Christian’ girl…” was very difficult for him to accept.
The applicant told the Tribunal that “eventually” another individual “replaced him” at the [workplace].
The applicant also told the Tribunal that in this same period (while in Egypt before leaving for Australia for a second time) he established a ‘relationship’ with a ‘local Muslim girl…’
According to the applicant, this girl (a Muslim) was “destressed” and “fearful” about their relationship.
The applicant told the Tribunal that these ‘concerns’ of his female friend were revealed to him, one day (the applicant was not specific – concerning the date) when he and his girl ‘were having a coffee…’
The applicant told the Tribunal, “while they sat together…” his girlfriend told him “her brother had heard about their friendship…” and that he had “accused her of having a love story…”
The applicant told the Tribunal that his ‘relationship’ between himself and this ‘Muslim girl’ was friendship. He went on to tell the Tribunal, that when his girlfriend told him about her brother’s suspicions about their friendship, the applicant confronted her brother to explain the situation. The result of this meeting to explain was according to the applicant – he suffering an “assault” from the girl’s brother.
The applicant told the Tribunal that at the time of the ‘assault’ the ‘street’ was full of people, but no one assisted him. The applicant recollected that following the assault, he went to ‘his father’s home’ where his father ‘told him to report the assault’ to the local police.
The applicant told the Tribunal that he attended the local police station and a report was made of the incident. After, making the report to the police, the applicant told the Tribunal, that his father suggested that [they] he consult with a lawyer in order to pursue a case against his girlfriend’s brother.
The Tribunal was told that certain enquiries were made by the lawyer engaged by the applicant concerning the alleged assault on him. These enquiries (according to the applicant) enraged the girlfriend’s brother who (according to applicant) “threatened to kill him…”
The applicant told the Tribunal that he was faced with ‘death threats’ from his female friend’s brother, his lawyer advised him that it was better in the circumstances, for him “…to leave the country and to go to Australia…”
The applicant was asked by the Tribunal to explain his relationship with the female friend. The Tribunal noted that in the applicant’s application he claimed he had a relationship with a Muslim girl. The applicant described his ‘relationship’ with this female as “a close friend…” and went on to tell the Tribunal that the friendship was “…not romantic…” Though, according to the applicant, the girl “…was in love with him…”
The applicant told the Tribunal that this female friend “disappeared…” When asked, how he came to know about this his female friend’s disappearance, the applicant said that he was told by the local police, who came to his home, and asked about the girl’s whereabouts. The applicant also told the Tribunal that the police believed that he may have kidnapped the girl.
The applicant on the issue of the kidnapping of his female friend, presented documents, he described (through the interpreter and his legal counsel) as ‘police reports’ but they were in Arabic with now accredited English language translation. The Tribunal allowed time for the documents to be provided with their ‘English-language translation.’
Following from this, the Tribunal asked the applicant to explain, how a person who was under suspicion by the police for an alleged kidnapping and for the permanent disappearance of a female was able soon after, the police informing him of his female friend’s disappearance able to leave Egypt for Australia. The applicant responded by telling the Tribunal that the police had not laid any charges against him, but simply had made a report and that the matter had “not reached the stage of accusation…” However, the applicant feared that such matters may be turned against him in future (if he returned to Egypt) because he was a Coptic Christian who had be-friended a local ‘Muslim girl…’
The Applicant’s Legal Counsel/Migration agent’s submissions at the hearing
The submissions were as follows:
§The applicant last arrived [in] March 2015 on a [Prospective Marriage] visa. The applicant was in a relationship with his ex-partner, [Ms B], and had made an application for that visa based on their relationship.
§During the applicant’s time in Egypt, he befriended a Muslim woman, named [Ms C]. While their relationship was platonic to begin with, this soon blossomed into a very deep friendship.
§The applicant is a Coptic Orthodox Christian.
§Due to the applicant’s religious affiliations, his close relationship with a Muslim woman, was denounced and invited further persecution. A series of threats and physical attacks were inflicted upon the applicant. This resulted in the applicant filing a report with the police and obtaining a restraining order against [Ms C]’s family.
§[Ms C] subsequently went missing. Her family blamed the applicant for her disappearance and launched a police investigation against him.
§The applicant ‘firmly’ defends his claim that he does not know where [Ms C] has disappeared to and is not associated with her disappearance.
§The applicant applied for a Protection visa on the basis that [Ms C]’s family will harm him if he is to return to Egypt.
The legal counsel/migration agent’s submissions continued questioning the veracity and competency of the interpreter at the Protection visa interview which was held at the Department in the following manner:
§During the interview, the applicant was asked if he went to [Ms C]’s house while nobody else was there. When questioned further about this, the applicant stated that they may have gone to a café, or coffee shop, near her home. The case officer found this discrepancy implausible, as the applicant had no explanation as to how, or why, he would confuse [Ms C]’s house with a coffee shop. When the case officer asked the applicant “when you [the applicant] went to [Ms C]’s house, was her family there?” The applicant responded with “No, she wasn’t in the house, it wouldn’t be possible anyway”. The interpreter simply said ‘no’ referring to the case officer’s original question regarding whether [Ms C]’s parent/family were at the house.
§One must consider the language barrier between the applicant and the questions posed by the case officer. The case officer asked a series of questions, and when they were answered by the applicant, further questions were asked which confused the applicant.
§The case officer asked the applicant when he was made aware of [Ms C]’s disappearance. The applicant responded that he was made aware when he was suspected of the crime and an officer questioned him about her disappearance. The interpreter proceeded to ask further questions about what time of day the applicant was confronted by the officer – being clearly outside the scope of the question being asked by the interpreter. It is for the interpreter to seek clarification that has not been sought directly from the case officer. As mentioned, this causes confusion on behalf of the applicant as to who he is to respond to. The interpreter is merely a conduit to bridge the language barrier between the case officer and applicant. The interpreter ought not take it upon himself to ask follow up questions. This is a further example of misinterpretation on behalf of the interpreter. The responses provided by the applicant were not accurately relayed to the case officer and resulted in a negative outcome of the applicant’s visa application.
§In this particular response, it is not a matter of which of the applicant’s responses required further clarification or rephrasing. Rather, the applicant made a statement and the interpreter took it upon themselves to ask further questions. The interpreter should have only relayed the responses of the applicant and the questions posed by the case officer. It is well outside the scope of their role to pose their own questions that would lead to a miscarriage in the assessment of the matter.
§When the applicant was asked if he had evidence from the intervention order against [Ms C]’s family, he stated that his lawyer advised him not to bring anything due to security reasons. Further, the applicant claims that his lawyer told him not to go to hospital as it would make the situation worse. The applicant thought the case officer was asking about the medical report.
§The decision record states that the applicant provided the police with a medical report from the incident with his application. This is not correct as the applicant did not provide a medical report. The applicant believes that his previous agent incorrectly wrote medical report when referring to the other police report. The applicant provided his police report and a copy of [Ms C]’s brother’s police report against the applicant. The case officer questioned why the applicant said he did not have these documents earlier. Understandably, the applicant claimed that he understood that the case officer thought they were requesting original police report documents (not a medical report). The case officer did not accept this response as it inferred that the applicant was not forthcoming with the informant regarding these reports. It cannot be expected that the applicant, or anybody, would understand the exact document requested by the case officer, being copies of originals.
§The applicant was entirely forthcoming with the investigation made against him regarding [Ms C]’s disappearance. It was specified in the applicant’s claims that [Ms C]’s family had blamed him [the applicant] for her disappearance, and the case officer was aware of this. It is inconsistent on the part of the case officer not to accept the police report from [Ms C]’s brother on the notion that the applicant did not notify the case officer that [Ms C]’s brother had filed a police report against the applicant. Thus, while the applicant firmly maintains his innocence regarding [Ms C]’s disappearance, the police investigation against the applicant, triggered by [Ms C]’s brother, is likely to have commenced via corruptive avenues. While corroboration cannot be expected, the investigation of the applicant’s alleged role in [Ms C]’s disappearance is unfounded and without merit. The applicant is not expected to answer to a manner in which the investigation was commenced, but only his role in the investigation.
§The applicant responded to this concern (departing the country despite an investigation being undertaken) to this concern by stating the investigation was still in its early stages. The matter had not been taken further as there was no evidence against him, and only a claim made by [Ms C]’s brother. With due process, an investigation cannot possibly go far without some evidence that the applicant had abducted [Ms C] or had a role in her disappearance. It is unreasonable to assume that the applicant would be remanded immediately and would be unable to leave the country if there was no further evidence against him on the matter.
§It was unreasonable to expect the applicant to provide evidence of his relationship with [Ms C] because it “was brief and secret”.
§The applicant submitted that the decision-maker took ‘a grossly over-stringent approach to the applicant’s evidence’. This centred on the authenticity of the applicant’s documents - police and medical reports.

The applicant’s migration agent and legal representative provided a further written post-hearing submission, which provided the following information:
§Misinterpretation of a relationship with [Ms C]. The applicant submitted that the case officer made repeated references to a relationship with [Ms C].
§The applicant submitted that there was no ‘romantic relationship’ but a friendship between a ‘Muslim’ woman and a ‘Coptic Orthodox Christian’ man. The relationship was misinterpreted by the case officer and this led to the refusal decision.
§Misinterpretation of visiting [Ms C]’s home. It was submitted that the interpreter, applicant and case officer were all talking at the same time – generating confusion and loss of vital information. In addition to the, already stressful situation of the applicant recounting their traumatic experience, the interview setting was plagued with aggression on the part of the interpreter. The interpreter did not wait for the case officer and applicant to make their statements, but rather the interpreter took it upon themselves to interject when they saw fit to ask questions on their own accord. ‘It would be unreasonable to decide on an interview headed by the interpreter and case officer.’
§Misinterpretation of [Ms C]’s disappearance and police report. At this time, the case officer asked the applicant when they were made aware of [Ms C]’s disappearance. The applicant responded that he was made aware when he was suspected of the crime and an office questioned him about her disappearance. It is not for the interpreter to seek clarification from the applicant that has not been sought directly from the case officer. This causes confusion on behalf of the applicant as to who to respond to. The interpreter is merely a conduit to bridge the language barrier between the case officer and applicant. The interpreter ought not to take it upon himself to ask follow up questions.
§Based on the above submissions and additional supporting documents, the applicant requested that the Tribunal acknowledges the misinterpreted merits of the case. The applicant’s claims were not relayed to the case officer and, as such, resulted in a negative outcome of his Protection visa application.
COUNTRY INFORMATION – EGYPT – THE RULE OF LAW – COPTIC ORTHODOX CHRISTIANS AND SECTARIAN VIOLENCE[4]
[4] see All country information which appears in this decision is extracted from Department of Foreign Affairs and Trade – Country information – Egypt 17 June 2019
Corruption in Egypt
Egypt is a State Party to the UN Convention Against Corruption (2005), and Article 218 of the constitution commits the state to fighting corruption. The Criminal Code criminalises active and passive bribery, attempted corruption, providing gifts with the intention to influence, abuse of office and the use of public resources for private gain. Several government agencies work to combat corruption, including the Central Agency for Auditing and Accounting, the Administrative Control Authority, the Ministry of Justice, the Ministry of Interior, the Public Prosecution Office, and the Egyptian Money Laundering and Terrorist Financing Combating Unit. President Sisi has made the fight against corruption a personal priority since he was first elected in 2014. In one high profile case, Egypt’s customs chief was arrested in October 2018 on allegation of taking bribes in exchange for smuggling of goods prohibited for import and without payment of required customs duties.
Despite this strong official framework, corruption is widespread throughout Egypt. The payment of baksheesh, or tips, in order to receive basic services is part of everyday life. A weak legal framework and a widespread culture of corruption leave businesses reliant on strong connections and the use of intermediaries to operate, and well-connected businesses enjoy privileged treatment. Legislation is enforced unevenly, leading government officials to act with impunity. In January 2019, Transparency International ranked Egypt 105th out of 180 countries (180 being most corrupt). One official report calculated the cost of corruption in Egypt between 2012 and 2015 as being USD 67.6 billion.
SECURITY SITUATION
Egypt experienced a major decline in law and order in the wake of the 2011 Revolution. A sizeable increase in violent crime, civil unrest and terrorist attacks at this time affected all Egyptians. There was a significant growth in communal violence, which impacted particularly on the Christian community (see Communal Violence) The Sisi Government’s strong emphasis on internal security has largely restored general law and order throughout most of the country. Large-scale ongoing protests such as those experienced in 2011 and 2013 are very rare now. Most of Egypt, including Cairo, has low rates for serious or violent crimes, excluding violence against women.
Security forces have been engaged since 2013 in a military conflict with up to 1000 militant Islamists claiming affiliation with the Islamic State (IS) terrorist organisation in North Sinai province. Although most attacks in North Sinai have been carried out against government and military installations and personnel, some have targeted civilians suspected of working with the authorities. Over 150 Christian families fled the northern Sinai town of al-Arish in early 2017 after militants killed seven Coptic Christians in a series of separate attacks, while an attack by militants on the Sufi Muslim-aligned al-Rawda mosque in North Sinai in November 2017 killed 305 people and injured a further 128. North Sinai has been under a localised state of emergency since October 2014. In February 2018, security forces launched ‘Operation Sinai 2018’ which significantly intensified the offensive in North Sinai in an attempt to create a buffer zone along the Gaza border. Although restrictions on reporting and a lack of official information makes it difficult to assess the outcomes from Operation Sinai 2018, human rights groups claim the operation caused food shortages and led to mass displacement, with over 3000 homes and commercial buildings destroyed. Authorities have responded by declaring that all actions undertaken during the operation were legal.
Militants claiming various affiliations, including with IS, have carried out or taken responsibility for a number of attacks in recent years. The most common targets have been the security forces or other senior representatives or the state, but militants have also targeted Coptic Christian churches and pilgrims, mosques, and tourists and other foreigners. The aforementioned attack on the al-Rawda mosque, for example, was the deadliest attack in recent years. As part of its response to these attacks, the government established a National Council to Confront Terrorism and Extremism in July 2017. The council is chaired by the president and includes the head of parliament, the prime minister, the head of Al Azhar University (Sunni Islam’s most prestigious educational institution, and the most prominent religious authority in Egypt), and several ministers. It is tasked with formulating a comprehensive national strategy to combat terrorism and religious extremism, including through proposing amendments to existing legislation, creating job opportunities in areas with high levels of extremism, and promoting moderate religious discourse.
State of Emergency
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.
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. 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.
Terrorist Attacks on Christians
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.
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.
Christians
Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and in major cities such as Cairo and Alexandria. Suburbs in Cairo and other cities and some villages are sometimes regarded or described as ‘Christian areas’, but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.
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.
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
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 (see Security Situation). 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
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 (see Judiciary). 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.
Police
Articles 206 and 207 of the Constitution set out the roles and responsibilities of the police force, namely ensuring safety and security to citizens, and preserving public order and morality. The Supreme Police Council, which is composed of senior police officers and the State Council’s Chief Legal Officer, assists the Minister of Interior in organising police affairs.
Police in Egypt are divided into two main forces: the Egyptian National Police (ENP), and the Central Security Forces (CSF). The ENP is a regular police force with approximately 350,000 personnel. It is responsible for law enforcement and maintaining public order nation-wide. It has a number of specialist agencies, including the General Directorate of Criminal Investigation and the General Administration of Criminal Evidence Verification. All police cadets are trained at the Cairo-based Mubarak Police Academy. The paramilitary CSF, which includes conscripts and whose estimated numbers vary considerably, is responsible for security at key infrastructure sites, diplomatic missions, and public events.
Professionalism varies across the police. The effectiveness of the police in general is limited by a shortage of equipment, a lack of training, low pay, and poor investigative skills, particularly in relation to investigating cases of sexual assault. In May 2015, the Ministry of Interior commenced a new policing strategy aimed at improving responses to violence against women, including through human rights training and the deployment of more female physicians to hospitals. Human rights groups report, however, that many women will not report crimes due to a lack of trust in the police.
The police do not enjoy the same high public esteem as the Egyptian military. The police’s ability to deal with evidence is widely mistrusted, particularly in relation to politically sensitive cases. Police mistreatment and impunity was a particular focus of protesters in the January 2011 revolution. Calls for investigations into incidents of police brutality remain common. The Ministry of Interior announced in February 2017 the formation of committees to evaluate police officers on ethics, behaviour, and psychological condition, while in March 2017 it signed a joint protocol with the NCHR to train 300 police officers on human rights.
There have been cases of police officers being successfully prosecuted for sexually assaulting or fatally beating detainees. In October 2017, the Court of Cassation confirmed prison sentences for six officers found guilty of beating a detainee to death in a Luxor police station. Human rights observers report, however, that impunity for the police (and other security forces) remains a significant ongoing issue. Authorities do not investigate all complaints of police abuse, and many prosecutions have resulted in acquittals due to insufficient or contradictory evidence.
Judiciary
Article 184 of the Constitution guarantees the independence of the judiciary and prohibits interference in judicial affairs; Article 186 guarantees the independence and permanent status of judges; and Article 198 prohibits the arrest or detention of lawyers engaged in defence work.
The judiciary remains a powerful actor in Egyptian society, and one with broad public support and respect: the mass demonstrations in 2013 that ultimately brought down the Morsi government were sparked by his decision to remove executive decisions from judicial oversight. Senior judges are generally seen as professional and independent. However, the quality and impartiality of individual judges may vary, particularly at more junior levels. Individual judges can be subjected to community pressure to rule in accordance with dominant social and political norms, particularly in cases where religion is a factor. In-country sources have reported instances in Upper Egypt where conservative Muslim lawyers and/or community leaders have demonstrated outside courtrooms hearing defamation of religion cases, implicitly threatening community unrest in the event of an unsatisfactory ruling.
Egypt has three supreme courts. The Supreme Constitutional Court is the highest judicial authority and has exclusive jurisdiction to decide issues regarding the constitutionality of laws. The Court of Cassation is the supreme court of the common court system, which deals with civil and criminal matters. The Supreme Administrative Court is the highest court of the administrative court system, known as the State Council, which adjudicates disputes involving government actions or those involving government employees.
The common court system hears the majority of criminal and civil cases. Courts of first instance are the first level of litigation in civil cases, and in criminal cases involving misdemeanours (crimes punishable by up to three years’ detention) and petty offences. Misdemeanour courts consist of a single judge attached to the court of first instance for that district. Appeals are to a misdemeanour court of appeals, consisting of a panel of three judges. Felonies that are more serious are tried before panels of three judges in criminal courts, which are a circuit of the courts of appeal. Egypt has eight courts of appeal, located throughout the country. Family courts deal with family-related disputes.
Misdemeanour and criminal court judges have the authority to conduct their own supplemental investigation into the facts if they are not satisfied with the evidence presented by the public prosecution and defence, or if new factual issues arise in the course of the trial. At the other extreme, trial judges can accept the evidence as presented by the parties in the court file without any requirement to hear live testimony from witnesses if not requested to do so by a party. In this manner, a large number of misdemeanour and even some felony cases are routinely tried fully in a single day – a way for misdemeanour courts, which struggle with very high caseloads, to reduce their backlog. Other trials, however, may unfold over the course of months, with trial sessions held only one or two days a month.
The Public Prosecution Office is an independent arm of the judiciary whose role is to conduct a neutral, unbiased investigation into the truth. It is headed by a Prosecutor-General, who is a senior judge selected by the Supreme Judicial Council from among the senior judiciary. Prior to the 2011 Revolution, the President had the power to select the Prosecutor-General. However, this authority has now been constitutionally reduced to the ability to merely appoint.
Public Prosecutors act as both investigators and courtroom prosecutors. Criminal investigations are generally initiated based on complaints filed by citizens or government officials but may also be initiated by the Public Prosecution Office itself based on information such as news reports. It is considered mandatory to investigate criminal complaints, which means that no inference can be drawn from the mere opening of an investigation. However, it is common for complainants to file a complaint, and then announce to news media that the Prosecutor-General is conducting an investigation into the matter, thereby creating the misimpression that the Prosecutor-General sees potential merit to the allegations made in the complaint.
The only avenue for appeal for cases before the criminal courts is the Court of Cassation. Appeals to this court are limited to issues of law rather than substance. However, judgements in criminal courts unsupported by sufficient evidence can be, and sometimes are, reversed as erroneous as a matter of law.
Despite numerous attempts over the decades by various presidential administrations to wind back their power, Egyptian judges have been largely successful in asserting and retaining their autonomy. The Sisi administration, however, has introduced a number of sweeping changes which give the presidency much greater control over the administration of the judiciary, including through the constitutional amendments passed in April 2019 (see Political System). These amendments establish a Higher Council for the judiciary, presided over by the President, which oversees existing bodies that manage the judiciary, including their rules, conditions, appointments, and disciplinary issues. The amendments also give the president the right to appoint the head of the Constitutional Court, and the Prosecutor-General.
Prior to the passing of the constitutional amendments, there had already been considerable resistance among both the judiciary and civil society to Law 13/2017, which introduced sweeping changes to how the heads of judicial bodies are selected. The law, introduced in April 2017, granted the president the power to select, without review, the chief justices of the Court of Cassation and the head of the State Council. The law overturned the longstanding judicial norm that considered seniority the fundamental standing for all promotions within the judicial system. Judges have long considered seniority, mentioned in Articles 159 and 209 of the Constitution, as a strictly neutral principle for promotion, and a protection against the politicisation of the judiciary. Opposition to Law 13 has focused primarily on how the law will
undermine judicial independence and control the judiciary through the appointment process. The law is currently being appealed in the Supreme Constitutional Court.
Since the introduction of Law 13/2017, President Sisi has appointed new heads of both the Court of Cassation and the State Council, bypassing the most senior judge on both occasions. In the case of the State Council, the rejected senior judge had a history of issuing judicial rulings that could be read as anti- government. The constitutional amendments introduced in April 2019 established a Higher Council for the judiciary, presided over by the President
Human rights observers have also expressed concern about increasing political interference in more junior judicial appointments. In February 2019, the media reported that all of the 2015 Law Faculty graduates applying for positions in the Public Prosecution were made to undergo a series of evaluations by non-judicial bodies – including the intelligence services – in order to assess their political leanings and their loyalty to the state. The process reportedly took many months and culled hundreds of applicants. Critics expressed concern that the evaluations were indicative of a wider presidential strategy to further assert control over the judiciary and to undermine its independence.
Detention and Prison
Article 56 of the Constitution relates to supervision of prisons. It states that prisons are houses for reform and rehabilitation, and that prisons and detention centres should be subject to judicial oversight. Article 56 forbids ‘all that which violates the dignity of the person and/or endangers’ their health. Prisons are the responsibility of the Ministry of Interior. As of 2016 there were 184 prisons, comprising 62 main prisons and 122 central prisons, and an unclear number of police detention facilities.
Egypt does not publish official prison population statistics. According to the World Prison Brief/ Institute for Criminal Policy Research’s World Prison Population List, as of 30 September 2018 Egypt had an estimated total prison population of 106,000 (including pre-trial detainees and remand prisoners), representing a 53 per cent increase in the prison population rate since the List was last published in October 2015. The increase in the prison population reflects the rise in arrests resulting from both the crackdown on the Muslim Brotherhood and as a result of the state of emergency. Of the total prison population, approximately 90,000 were held in prisons and the remainder in police detention facilities; approximately 10 per cent were pre-trial detainees and remand prisoners; and approximately 96 per cent of detainees were male.
According to human rights observers, prison conditions do not meet international standards because of overcrowding, poor sanitary conditions and widespread violence. Egypt does not generally allow human rights bodies to visit prisons, and the NCHR must obtain approval from the Prosecutor-General to conduct prison visits. Visits by relatives and lawyers are regularly (and arbitrarily) banned or are severely limited in time (often between five and ten minutes only). Food rations are severely limited and of poor quality, and authorities frequently deny prisoners basic comfort and hygiene items. While it is technically possible for prisoners to complain internally about mistreatment, doing so is likely to result in punishment for the prisoner.
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 Court of the Federal Court made comments on determining ‘credibility’. The Tribunal notes in particular, the cautionary note expressed by Foster J at [194]:
…care must be taken that 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 been accepted…
The Tribunal also acknowledges and 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, 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 applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant (s). 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 that if it makes an adverse finding in relation to a material claim made 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: MIMA v Rajalingam (199) 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 before it can find 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 & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMMA (1998) 86 FCR 547.
The applicant claims that he was born in Egypt and is a member of the Coptic Orthodox Church (a ‘Christian’). The applicant also claims that he befriended a ‘Muslim’ female called [Ms C] and when her family found out about his friendship, he was threatened and attacked by her brother. The applicant also claims, that [Ms C] (the Muslim female) later went missing and that her family accused him of being involved in her abduction and disappearance and had him reported to the local police. The applicant fears that if he returns to Egypt, in the reasonably foreseeable future, he will be detained by the authorities and questioned and imprisoned for an alleged crime he did not commit. He also believes that these allegations of an alleged wrongdoing will pursued by the authorities even though they are ‘untrue’ and without basis because the Egyptian state authorities treat Coptic Orthodox Christians (like the applicant) differently from the majority Muslims. These aspects of the applicant’s claims, the Tribunal did not find credible for the reasons that follow in this decision.
Is the harm feared for a convention reason?
‘Persecution’ within the meaning of the Refugees Convention is defined by the use of the words “for reasons of…” Section 91R(1) of the Migration Act also requires that the grounds of race, religion, nationality, political opinion or membership of a particular social group be the essential and significant reason for the applicant’s fear of persecution. In this instance, the applicant has claimed to fear being assaulted and even killed by his female friend’s family who accuse him (according to the applicant’s claims and evidence) of her disappearance. A ‘disappearance, the applicant has told the Tribunal, he knew nothing about until he was questioned by the local police. Also, the applicant fears being detained, prosecuted and imprisoned by the Egyptian police for the disappearance of his female ‘Muslim’ friend if, and when he returns to Egypt. His evidence centres on the fact that he is a Coptic Orthodox Christian who had a friendship with a Muslim woman and as a result of this friendship, he will be persecuted for an alleged crime he had no part in. His persecution, the Tribunal was told was inevitable (from the authorities and the female’s family members) because he was a Egyptian ‘Christian’- implying that no justice was possible for the applicant in Egypt because the system of justice favoured the Muslim majority and less, Christians or other minorities.
The mere fact that an applicant claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason or reasons claimed. A ‘fear of persecution’ is ‘not-well founded’ if it is merely assumed or if it is mere speculation.
First, the applicant claims that he was born in Egypt and follows the Coptic Orthodox faith. Based on the information[5] the Tribunal has before it, the Tribunal accepts these claims.
[5] see, further submissions made by the Applicant (in particular, letter from local parish priest – character reference) in the AAT File.
Second, the applicant claimed that after a marriage proposal ended in Australia, he returned to Egypt and over a period of time (he was not exact or provided any timelines), he met a local female who he became friends with and began a ‘friendship’. This female was described to the Tribunal by the name ‘[Ms C]’. She was of the Muslim faith. From the description of the friendship provided by the applicant in his evidence before the Tribunal, the relationship was a ‘friendship’ (his migration agent describing it as a ‘platonic friendship’ in his submission). There was no romance as such or any other intimacies that close friendships develop into. Though, the applicant believed that there was ‘some feelings’ for him from his female friend. The Tribunal was then told, that in some way, the friendship became known to the female’s family, in particular, her brother, who did not approve of the friendship between their sister (a Muslim) and the applicant (a Coptic Orthodox Christian).
The Tribunal was told for example, on one occasion while the applicant and his female friend “sat together” his female friend told him “her brother had heard about their friendship…” and had “accused her of having a love story…” Having been made aware of the problem, the applicant told the Tribunal that he decided to confront his female friend’s “brother” to “explain” to him “the friendship.” The result of this meeting (according to the applicant) was – he was assaulted by the brother. Later, the Tribunal was told the applicant was advised by his father to report the incident to the local police and to consult a lawyer. The Tribunal was then told that certain enquiries were made by a local lawyer and this enraged the female friend’s brother who “threatened to kill him.”
Following these threats, the lawyer advised the applicant that it was best to leave for Australia. Finally, the Tribunal was told that the female friend “disappeared”, and the applicant was informed of her disappearance by the police. The applicant also told the Tribunal that the police suspected his involvement in his female friend’s disappearance and similar sentiments were held by the female friend’s family. The Tribunal does not accept the applicant’s claims as credible for several reasons.
The applicant’s description of how he formed his friendship with his Muslim female friend was very sparse and lacked details. No timelines were provided of when and how the friendship began. The applicant did not provide the Tribunal with a detailed description of his female friend except to tell the Tribunal that she was “Muslim” in her religious faith. He provided on detail description of who she was or what she did or what her interests were – her likes or dislikes. Then, he told the Tribunal a ‘brother’ took exception to the friendship because it could not be permitted as it was between a Muslim woman and ‘Christian’ male.
There was also an accusation levelled against the female for having – what the applicant described a ‘love story’ with him (indicating some affair or the possibility of an affair). Again, the descriptions of the ramifications caused by the friendship as claimed are very limited in the detail and the Tribunal is of the opinion that they were presented to the Department and later to this Tribunal as a means of bolstering the applicant’s claims for attracting protection from Australia on the grounds that he could or would suffer persecution in Egypt because he had a ‘relationship’ – a friendship – the applicant a Christian with his female friend a ‘Muslim’. Indeed, such social interactions are not generally outlawed in Egypt though communal violence can be generated by such relationships in the less urban areas of Egypt. Having said this, the applicant claimed that this friendship between he – a Christian and his Muslim female friend was not a relationship, caused him severe consequences both while in Egypt and in future, if he was to return to Egypt. Again, the Tribunal does not find that the applicant’s fears are well-founded. As the country information reports, “the majority of incidences of communal violence in [Egypt] in recent years have taken place in the provinces of Upper Egypt…In one particularly high profile incident in 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by 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.”[6] The report goes on to state, that “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 the 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…”[7] DFAT concludes as follows: “while the 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 occur, especially in Upper Egypt (and in Minya). Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.”[8] Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution because of his ‘friendship’ with a Muslim female as he claimed or for any other reason as defined in s. 5J (1)(a)(b) and (c) of the Act.
[6] see DFAT report – Egypt, 17 June 2019 at p.19
[7] Ibid DAFT report – Egypt, at p.19
[8] Ibid DFAT report, at p.19
Third, the applicant claimed that he is a victim of corruption, having been placed under suspicion for the disappearance of his Muslim female friend. As evidence for this ‘fear’ the applicant produced two police reports one from the applicant and the other two from his female friend’s brothers.[9] On first sight of these documents, the Tribunal having read their contents can only express concerns about their authenticity. No original documents were provided, only photocopies (both to the Department without translation and to the Tribunal with an English language translation). The document is identified by both the applicant and his legal representative as being authentic – the documents supposedly have a ‘stamp’ or ‘seal’ affixed upon them of the “Cairo Security Directorate”. The appearance of such a document as it is presented causes the Tribunal to suspect its origins. Nevertheless, the Tribunal has other concerns as to these documents’ contents. There are two documents – one, (where the applicant is asked a series of questions about the assault he suffered) which is dated 30 March 2015, the other document (police report), deals with her disappearance and involving the female’s brother is dated 25 March 2015.
[9] see AAT File – Applicant’s post-hearing submissions (attached) documents
It is interesting to note, that the submitted police report dated 30 March 2015, where the police interview the applicant, it makes no mention of the female’s disappearance or whereabouts but asks him about the alleged assault he suffered while he was with his female friend. It would be reasonable, if a disappearance had occurred of a person to have mentioned in the alleged police report (of, 30/3/2015) the female’s disappearance and sought the applicant’s views about her disappearance. No such mention occurs. The disappearance of the female friend features in some detail in the police report involving the female’s brother, [Mr D]. No follow up inquiry with the applicant is forthcoming and the Tribunal was told that the applicant was the main (and only) suspect of the local police’s criminal investigation. Surely, a report of person’s disappearance would have unleashed an avalanche of questions from the police on 30 March 2015 when they were allegedly interviewing the applicant? None are to be found.
Furthermore, and related to the issue of the police investigation and police reports, the applicant’s legal representative submitted the following:[10]
Corruption in Egypt is high. We refer to Transparency International’s Corruption Perceptions Index, ranking Egypt as 106/180.[11] This rating has increased since 2012 and is representative of the ongoing corruption within Egypt’s authority system…
[quotation follows from the DFAT report][12]
Thus, while the applicant firmly maintains his innocence regarding [Ms C]’s disappearance, the police investigation against the applicant, triggered by [Ms C]’s brother, is likely to have commenced via corruptive avenues.
[10] Ibid AAT file
[11] Transparency International, Corruption Perception Index (2019);
[12] DFAT, Country Information Report – Egypt (Corruption), 17 June 2019 at paragraph [2.24]
When questioned about departing the country while the investigation was still in its early stages. The applicant’s legal representative submitted the following explanation:
The matter had not been taken further as there was no evidence against him, and only a claim made by [Ms C]’s brother. With due process, an investigation cannot possibly go far without some evidence that the applicant had abducted [Ms C] or had a role in her disappearance. It would be unreasonable to assume that the applicant would be remanded immediately and would be unable to leave the country if there was no further evidence against him on the matter. [the italics is the Tribunal’s]
Essentially, the Tribunal is told that the applicant is a victim of corruption in the local police – inferring that the disappearance of his female friend was contrived and when attempting to explain why the applicant was allowed to depart Egypt for Australia, the response was, that it would be unreasonable to assume that the applicant would be remanded immediately and would be unable to leave the country if there was no further evidence against him on the matter. On the one hand, it is claimed the applicant is a victim of official corruption and on the other, we [the Tribunal and Department] are told that the applicant was free to leave Egypt because with due process, an investigation cannot possibly go far without some evidence that the applicant had abducted [Ms C] or had a role in her disappearance. Moreover, and to the point, the Tribunal has been told that a police investigation remains on foot and that the applicant would be severely treated and found guilty of the disappearance and abduction of his female friend because he a Coptic Christian when, he returns to Egypt. The applicant and his legal representative have drawn a very broad bow in the Tribunal’s opinion in presenting this evidence. The Tribunal finds that the entire claim concerning the alleged by the authorities disappearance of [Ms C] to have been contrived (by the applicant) to enhance the applicant’s protection claim. The Tribunal does not accept as credible the evidence as provided or the explanations submitted. The applicant cannot claim to be the victim of official corruption and at the same time claim that due process was being carried out and this exonerated him as far as it concerned the alleged disappearance of his female friend and was then allowed by the authorities to leave Egypt. Then, what has the applicant to fear if he was to return to Egypt? Having considered the evidence before the Tribunal and submissions made, the Tribunal finds and concludes that the applicant does not have a well-founded fear of persecution because of he has been accused, suspected or had instigated the alleged abduction of disappearance of a female called [Ms C] nor that he faces any official investigation by the authorities if he was to return to Egypt in the reasonably foreseeable future or for any other reason as defined in s5J(1)(a), (b) or (c) of the Act.
Third, for completeness, and related to the issue of the allegations made against the applicant as claimed accusing him of having arranged the alleged abduction and disappearance of his female friend, [Ms C] (as he described her) – allegations that were “commenced via corruptive avenues” as it was submitted and the fear of further persecution if the applicant was to return to Egypt in the future, the applicant and his legal representative were of the belief that due to the applicant’s religion (being a Coptic Christian) he would not be afforded due process. Again, the Tribunal refers to the country information which describes the judiciary in Egypt as a powerful actor in Egyptian society, and one with broad support and respect.[13] The report goes on to describe the Egyptian judicial system as independent and able to withstand certain sectarian or societal influences be it of a religious or political nature. This information acknowledges some issues in lower courts in the application of justice to matters (and that is limited to minor courts) but overall, the judiciary[14] remains key dispenser of justice under the rule of law in Egypt. Therefore, if there were allegations subsisting against the applicant which the Tribunal has determined there are none (as has been explained) the Tribunal finds and concludes that effective protection measures as defined in s.5LA of the Act are available for the applicant despite his religious beliefs – being a Coptic Orthodox Christian and therefore he does not have a well-founded fear of persecution as is provided for in s.5J(2) of the Act.
Other matters considered by the Tribunal
[13] DFAT – Country information paragraph 5.10 et.al at pp. 40- 42 (17 June 2019).
[14] Article 184 of the Constitution guarantees the independence of the judiciary and prohibits interference in judicial affairs; Article 185 guarantees the independence and permanent status of judges; and Article 198 prohibits the arrest and detention of lawyers engaged in defence work.
The Tribunal noted that the applicant’s legal representative provided extensive written submissions concerning the appropriateness of the interpretive abilities of the Arabic interpreter engaged by the Department for the Protection visa interview, which took place on 22 June 2017. The Tribunal also noted that certain excerpts of the interview were provided with a translation in English highlighting the errors (as claimed) made by the initial interpreter involved.[15] The Tribunal notes that no issues were raised concerning the interpreter involved in the Tribunal’s hearing of this matter or concerning the evidence as interpreted to the Tribunal
[15] See AAT File

Having considered the submissions made by the applicant’s legal representative, the Tribunal is of the opinion that their relevance to the matters addressed, explored, and considered by the Tribunal at the hearing is negligible and the Tribunal does not accept them. It should be made clear, that the Tribunal hearing this application of review of a decision of the Department, does so as a de novo review. The de novo review is the most comprehensive form of merits review. On a hearing de novo, the merits review body (the Tribunal in this instance) ‘stands in the shoes’ of the original decision maker: see, Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 46, the merits review body has to go through the decision-making process afresh, having regard to the applicable law, any relevant government policy and the material the applicant puts forward. The applicant is free to present any relevant material, even if they did not present it to the original decision-maker. At the end of this process, the Tribunal makes a fresh decision. The aim of a merits review body conducting de novo review is often described as reaching the ‘correct or preferable’ decision: see, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR, at 419; McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423, at 427.[16] In conclusion, the Tribunal has heard all the evidence and considered all the material placed before it at its hearing of the matter and that remains the Tribunal’s foremost concern in this instance.
[16] Also refer to Judith Bannister, Gabrielle Appleby and Anna Olijnyk, Government Accountability: Australian Administrative Law (Cambridge University Press, 2015) Part III Merits Review pp.281-304.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Egypt in the reasonably foreseeable future and therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa). For the reasons provided for above, the Tribunal does not accept that the applicant was forced to leave Egypt because he caused the disappearance of a female friend, called [Ms C] or that he was a victim of false accusations levelled against him by her family who disapproved of his friendship with her and was interrogated by ‘corruptive elements’ in the local Egyptian police because of this friendship – she a Muslim and he being a Coptic Orthodox Christian nor are there substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his country of reference, Egypt, there is a real risk that he will suffer significant harm because he chose to have a friendship with a Muslim woman.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2021] AATA 4558

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction