1722995 (Refugee)

[2021] AATA 1936

1722995 (Refugee) [2021] AATA 1936 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1722995

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Peter Vlahos

DATE:22 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

This Statement was made on 22 April 2021 at 11.36am

CATCHWORDS

REFUGEE – protection visa – Egypt – religion – Coptic Christian – particular social group – Air Force officer – attacks by Muslim extremists – sectarian violence – treatment of officers in the military – enforcement of anti-discrimination laws – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 91
Migration Regulations 1994, Schedule 2

CASES

Chen Shi Hai v MIMA (2000) 201 CLR 293
MIMA v Rajalingam (1999) 93 FCR 220

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 September 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Egypt, applied for the visas on 29 December 2014. The delegate refused to grant the visas on the basis that the application did not satisfy subsection 36(2) of the Migration Act.  

3. The applicant made an application to the Tribunal to review the delegate’s decision on 25 September 2017.

4. A hearing of the applicants’ application for review of the delegate’s decision on 8 April 2020.

5. The applicants were assisted at the hearing by an interpreter in the Arabic and English languages and were represented by qualified legal practitioner and registered migration agent.

6. The applicants provided no further witnesses for the Tribunal hearing.  

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons provided herein this decision, the Tribunal has concluded that matter should be remitted for reconsideration.

    Country of origin and assessment

14. Based on a copy of the applicants’ passports, which were provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Egypt and have had their individual and collective claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. On this basis therefore, the Tribunal further accepts the applicants’ identities as they claimed.

    Department file

15. The Tribunal has before it the Department’s file relating to the applicant and the ‘secondary applicant’. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicants provided a copy of the departmental record of decision to the Tribunal with their application to review.

    Background – Migration history of the applicants

16. The applicants both applied for a Visitor visa on 28 September 2011 and on 27 October 2011 were granted a [Visitor] visa. [In] January 2012, the applicants arrived in Australia and [in] May 2012 both applicants departed Australia. On 31 December 2013 the applicant applied for a Visitor visa which was granted [visa type] on 9 January 2014. On 31 January 2014 the secondary applicant applied for a Visitor visa and was granted same on 5 February 2014 ([visa type]). [In] December 2014 both applicants arrived in Australia and on 29 December 2014 both applicants lodged an application for Protection visa (subclass 866) visa.

    EVIDENCE AT THE HEARING

17. The applicant originates from the city of , he is a retired military officer (Egyptian Airforce) and is married. He has [a family member], who is married and living in Australia and is an Australian citizen. The applicant is a graduate of the Egyptian Air Defence Academy and served in the Egyptian military for considerable period – choosing to voluntarily retire in [specified year] after serving since [year]. He left the Egyptian air force with the rank of … After, his service in the air force, the applicant operated a [business] in the district of [District 1 in] Alexandria where he lived until he and his wife departed Egypt for Australia.

    The applicants’ claims for Protection

18. The applicants’ claims for protection and supporting evidence are contained in the Department of Home Affairs file [number] and are summarised as follows:

    §The applicant is a Coptic Orthodox Christian. He joined the military academy in the period [year range]. He then worked in [a specified military agency]. He left the military in [year] because he is a Christian and he faced discrimination and abuse while he was in the air force.

    §After he retired from the air force, he established a store in [District 1], Alexandria. It was announced at the mosque opposite the store that according to ‘Sharia’, Muslims should avoid dealing with Christians, and people would often avoid the shop. They used to annoy him and his family to force them to leave the area. Once his store was attacked and afterwards, they sent some message through some people asking him to leave the area. He sold his store and apartment.

    §During the Mubarak era, many Christians who were involved in clashes with Muslims were either killed or injured. Muslims burned houses and crops, forcing Christians to leave. Muslim offenders received soft penalties. For example, in 2013 Muslims opened fire on a church after Easter mass, and many Christians were killed.

    §There was an attack in his suburb. On [date], there was an explosion at the [a named church]. Fifteen people were killed, and many were injured. The Church is only [distance] from his home.

    §Religious tension between Christians and Muslims has worsened after Morsi took power in 2012. After Morsi was removed from power, then 80 churches were attacked as a type of revenge, and there was specific targeting of Christians. The instability in Egypt has worsened since then, causing many attacks, kidnappings and forced conversions of Christians. Egypt is now in a state of lawlessness, with little or no police authority. There is no protection for Christians or freedom of religion.

    §President Sisi, who is a former army officer, is in power. The applicant claims that the threat towards him is “even more imminent.” His [relative], who was a police officer, was receiving threats and offensive remarks, and decided to flee Egypt.

    §The applicant claimed that he started to face discrimination because he was an ex-military officer and well known in his suburb. Since 30 June, extremist Muslims were attacking Army and Police officers. This became worse when Sisi became President, because he removed the Moslem Brotherhood from power. The applicant claims that he started to experience verbal abuse. Two months after Sisi took power, the applicant’s car was destroyed. He reported this to the police, but the police took no action to protect him. He received a few warning letters threatening to hurt him and his family because he reported the incident to the police. They threatened to hurt his family and burn his apartment if he did not leave the suburb. He reported this incident, but no action was taken to protect him. He was forced to flee from the area completely.

    §The situation has caused him and his family to live in great fear and it is unsafe to go to church or walk the street at night as there is a lot of harassment and kidnappings. He has been affected emotionally and mentally. He and his wife are afraid as they are elderly and live alone. He decided to leave his home. He sold his vehicle and stayed at his [Relative A’s] apartment.

    §There is a war brewing in the streets between the remaining supporters of the Moslem Brotherhood and the government. The situation will get worse for Christians, especially those belonging to the Army. The authorities in Egypt will be unable to protect him.

    §If he and his wife return to Egypt there is a possibility, they will be attacked by either the fundamentalist groups or the Moslem Brotherhood. Churches have been attacked all over the country, Christians are persecuted, and Christian women are assaulted.

    §Attacks on Coptic Christians happen all over Egypt. Also, due to his age, relocation has become impossible. Furthermore, he will be known wherever he goes because he is an Army retiree. He can be identified as an Army retiree because of the benefits available to retirees. If he take advantage of these benefits, he will become an easy target.

19. The applicant asked the applicants through the interpreter, if they had any additional claims to make to the Tribunal and for the Tribunal to consider. The applicants’ response was that there were no variations to be made to the original claims and no additional claims. This was also the opinion of their legal counsel and migration agent.

20. Both applicants told the Tribunal they were Coptic Christians as were other members of their family in Egypt and in Australia.

21. The applicant ([named]) (herein after to be referred to as ‘the applicant’) told the Tribunal that he had graduated from the Egyptian Air Force Academy with the rank of [rank] in [year][1]. After his graduation, the applicant told the Tribunal, that he joined the Egyptian Air Force, where he remained until he resigned in [year]. The applicant went on to tell the Tribunal that he as a member of the Egyptian Air Force and as a Egyptian Copt ‘serving in the armed forces’ had after a number of years of service, ‘two options’ provided to him by his immediate superiors and that was, he could choose to retire on a military pension or continue to work in the defence force and be stationed wherever, the military ‘ordered’ one to be stationed.

    [1] After the Hearing, the applicant’s Legal representative provided further documents confirming his identity as was claimed, these being (i) Egyptian Veterans Card, (ii) Egyptian National Card, (iii) Egyptian Driver’s Licence and (iv) Egyptian Military Identity Card.

22. The applicant was asked by the Tribunal, did he experience ‘discrimination’ while serving in the Egyptian Air Force because of his religion – being an Orthodox Copt? The applicant told the Tribunal that once a graduate leaves the academy, he ‘is stationed away from home.’ The applicant explained to the Tribunal, that for his entire service in the Air Force, he was never stationed close to his home. He attributed this (according to the applicant’s oral evidence) to him being a “Christian”. He also told the Tribunal that there were other matters where he was treated different and less favourably than were his fellow serving officers who were Moslems in their religion; for example, leave or furloughs to enable him to be with his family on specific religious occasions was denied to him whereas a Moslem was provided with such furloughs for family and religious events and festivals. The applicant also told the Tribunal that because of his Coptic Christian beliefs, he was given more specific and challenging tasks over a considerable period than was the case with his fellow Moslem officers. For example, on one occasion, the applicant requested his superiors to provide him with compassionate leave to be with his wife who had given birth to one of his sons, and this request was refused without any reason being provided. The Tribunal asked the applicant why this treatment was given to him by his superiors? The applicant told the Tribunal that it was because ‘he was the only Christian officer in his unit and all others were Moslems.’ On other occasions, the Tribunal was told, his fellow Moslem officers would ‘joke with him about his Christian faith.’ On one specific occasion, the applicant explained that a fellow Moslem officer jokingly told him – ‘why do you Christians want three Gods and we Moslems can do with one…’ (obvious satire against the Christian belief in the Holy Trinity – ‘God, Son and Holy Spirit’).

23. Regardless, of these happenings, the applicant told the Tribunal that ‘he put them to one side’ and was ‘patient about it all’ and carried on with his duties.

24. With time, the applicant told the Tribunal, that an opportunity surfaced in the [year range] for him to request to leave from the Air Force on ‘medical grounds’ at the age of [age] years. The opportunity was taken by him.

25. The applicant told the Tribunal that he retired from the Egyptian Air Force having reached the rank of “[higher rank].” His service having progressed from [specified year] till [year] – a [period] career.

26. After leaving the Air Force, the applicant established his own retail business, selling to the public [products]. His [Relative A], the applicant told the Tribunal had a similar business.

27. The Tribunal was told that the applicant’s business operated well for approximately four years. After running his own business, the applicant sold it and began working for a number of [industry] companies (names were not disclosed to the Tribunal or details provided). This employment continued until the applicant and his wife left Egypt.

28. The Tribunal asked the applicant – why was he targeted in his suburb? What did he do to attract the attention of religious (Moslem) fundamentalists? The applicant recalled that when he established [business] – opposite his building was a ‘mosque’. According to the applicant’s oral evidence, the mosque in question was frequented by Moslem fundamentalists. The applicant explained that he was often under scrutiny as far as it concerned his ‘activities with his local church and its charity work’. Moslem elements, the Tribunal was told monitored his every move, but he continued his religious activity and his ongoing work with his local church’s charity work with the poor in the suburb and district.

29. What made the applicant’s position very difficult was (according to his evidence) the fact that many persons in the area ‘knew that he was a former military officer’. The Tribunal asked the applicant to explain – how people knew that he was a former member of Egyptian Air Force? The applicant explained, that when a person has served in the military and then retires, his service is always recognised by the Egyptian State by providing (each) retiree with motor-vehicle number plates with a distinct military insignia embossed upon them. In other words, his vehicle is clearly and publicly marked. Hence, according to the applicant if a person or persons have some grievance against a person who was in the military, the vehicle is one piece of property easily marked for a reprisal attack. The Tribunal was told that this was what occurred to the applicant. His vehicle was ‘damaged’ by ‘unknown persons’ (this occurred according to the applicant on [a day in] September 2014) and the ‘attack’ was reported two days later to the local Egyptian police (on [date]). The Tribunal was also told that the damage caused to the applicant’s vehicle was also witnessed by the applicant.

30. The Tribunal asked the applicant, why would radical elements target him? The applicant explained that this attack had to do with two matters: (i) he was a Christian (Orthodox) Copt in a Moslem district/suburb who was very active in his local church’s charity work and (ii) as a ‘former military officer’ with a ‘significant rank’ these radicals saw him as an apologist and supporter of the Sisi regime and would not leave him ‘in peace’ as long as he was in their neighbourhood.

31. The ‘attack on the applicant’s vehicle’ was reported to the local police but this did not get any satisfactory results for the applicant, the Tribunal was told. After this incident, the applicant told the Tribunal that he began to receive ‘threatening calls’ from a ‘private number’ warning him to ‘withdraw the complaint’ or ‘he would face the consequences.’ This course of threats the Tribunal was told continued for weeks (though the applicant could not provide a clear timeline) and caused him great distress and fear that he would actually be harmed or even killed.

32. As for the police investigation, the Tribunal was told, it delivered ‘no results’ and the culprits that damaged his motor vehicle were never found even though the applicant continued to receive threatening calls from a ‘private source’. The last ‘threat’ was received on 10 October 2014 in letter form and warned him to ‘leave the area’ or else he and his wife would feel the consequences.

1. The applicant ‘fearing for what might happen next’ closed his apartment and went (in order to feel some safety (with his wife)) to live with his [Relative A]. Thereafter, the applicant told the Tribunal, he collected what belonging he could (secured the remainder) and decided not to again return to the apartment to seek some means and way to leave to a better and safer place.

2. The apartment, the Tribunal was told, remains locked and is occasionally ‘checked’ by his [Relative A]. The applicant confirmed for the Tribunal that there have been ‘no attacks’ on the applicant’s apartment in his absence.

3. The applicant was asked whether he contemplated returning to Egypt in the reasonably foreseeable future? His response to the Tribunal’s enquiry was that he feared to return because he was as former member of the Egyptian military – a ‘target’ for Islamic militant elements within the community. His ‘past’ was widely known and could not be so easily concealed from public knowledge. The applicant went on to tell the Tribunal that these Islamic cells continue their clandestine activities against the members of the military and against Coptic Christians even when the entire country is under a state of emergency. He was totally uncertain as to where a person of his position could find peace and security.

4. The applicant was asked as to why his departure from Egypt was delayed. The applicant explained to the Tribunal, that both he and his wife made the arrangements to ‘leave Egypt’ themselves and the matters were made difficult for them because of the deterioration of the situation in Egypt. Once the visa was processed the applicants departed and were decided in making an application for a protection visa once in Australia, the applicant told the Tribunal. This occurred as soon as they arrived in Australia.

5. The applicant provided no further comments to the Tribunal.

6. The secondary applicant was asked by the Tribunal if she wished to inform the Tribunal of any matters, she thought relevant to the review under consideration but the secondary applicant told the Tribunal that the applicant had provided all the information concerning their Protection claims.

   The representative’s written claims before the Tribunal

7. The applicant’s registered migration agent provided the following written submissions concerning the applicants’ protection claim.[2]

   [2] see Migration Agent’s written submission in AAT File

8. In summary the migration agent and Legal representative, [named] provided the following explanatory submissions on the applicants’ claims (provided here in summary):

   §The applicants’ claims are compounded by his affiliation with the Coptic Orthodox Church in Egypt and his victimisation as a Coptic Christian.

   §Due to his religious affiliation and status as former member of the Egyptian Air Force, the applicant has faced persistent threats to his life and in conjunction with threats to his family and his property.

   §It was the applicant’s personal experience that Muslim extremists targeted military officers and police, and that this persecution intensified when Sisi came to power. While country information does not give mention of this targeted persecution, this does not mean it does not happen.

   §The applicant’s “notoriety” in his suburb should be considered in support of the applicant’s claims as, while the basis of the applicant’s claims are centred on his religious affiliation, this must also be coupled with his status as a former officer in the Egyptian air force.

   §The delegate also stated that, under the Sisi administration, “day-to-day life for most Copts in not overly affected by communal tensions”, but there have been over 400 reported incidents of sectarian violence against Copts between 2013 and 2015 alone.[3]

   §The applicant is of the opinion [according the registered migration agent] that, since April 2017, despite the declaration of a state of emergency by the Egyptian government, sectarian violence has been on the increase and Coptic Orthodox Christians have suffered horrendous casualties and deaths as a result of they are and what they believe in regardless of the assurance and willingness of the Egyptian state to protect them against attacks by radical non-Christian elements and despite legal guarantees expressed in “eloquent language’ in enactments of the Egyptian legislature and in the Egyptian Constitution.[4]

   §The decision-maker took a grossly over stringent approach to the applicants’ evidence and as such the applicants’ claims have been unjustly excluded from consideration. The decision-maker must bear in mind that if he makes an adverse finding in relation to the material claim made by the applicant but is unable to make that finding with confidence he/or she must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220. The delegate concluded, without any expert assistance, that the applicant’s documents may have been fraudulent. The delegate should not make an inference as to the authenticity of a document based on opinion that it is not authentic, despite DFAT’s report on the fabrication of documents from Egypt.

   §The [delegate] also points to a lack of police reports being available to support the applicants’ protection claims prior to 2-3 months before their arrival in Australia. Coptic Christians, as the minority, have to report to a biased police force, officers of which are compromised by a majority Muslim demographic. This in turn contributes to the hesitancy in obtaining a report. [5]

   §All claims by the applicant are, consistent.

   §In relation to the applicant’s claim being harassed and verbally abused, they were credible, and the damage of the applicant’s vehicle was genuine. The fact that that the applicant could not corroborate evidence as to whether the applicant was being attacked by the Brotherhood or Salafists is not the issue. It was extremely unreasonable as to how and why the applicant would be required to identify an attacker – whether he was one or the other – while an attack was actually occurring.

   §DFAT’s 2019 Country Report highlighted that the Egyptian government generally failed to prevent, investigate, or prosecute crimes against members of religious minorities, especially Coptic Christians.

   COUNTRY INFORMATION – COPTIC CHRISTIANS IN EGYPT & SECTARIAN VIOLENCE -THE MILTARY AND THE STATE OF EMERGENCY

   [3] The Tahrir Institute for Middle East Policy, ‘TIMEP Brief: Sectarian Violence’ (21 November 2018)

   [4] Case no. 1613162 – Remitted decision Record at [56]

   [5] DFAT, ‘Country Information Report – Egypt’ (17 June 2019),

9. The following information is included to provide a context for assessing the applicant's claims. Unless otherwise stated it is based on the Department of Foreign Affairs and Trade Country Information Report on Egypt and Thematic Report on Egyptian Copts, both issued on 24 November 2015. The Tribunal also took note of the new DFAT country information report on Egypt and its contents dated 17 June 2019.

10. Extracts form this latest report as far as it concerns matters raised in this application and to which the Tribunal referenced or were referred to are found in the “appendix” which attaches to this decision.

11. Coptic Christians comprise some 10 per cent of Egypt's population of 83 million. They are present in most parts of the country and are represented at all levels of society. Copts have access to all levels of education and are present in most areas of employment. There are prominent and influential Copts in politics, business and the arts. However, Copts have long faced some degree of societal discrimination. Few Copts hold senior positions in institutions such as the military, universities and the public service. There is also sporadic harassment of Christians in some areas, for example targeting women with uncovered hair. Discrimination and prejudice are more of a problem in poorer urban and rural area.

12. The Egyptian Constitution recognizes Christianity, along with Islam and Judaism and grants Copts the same rights and freedoms as other Egyptians.

13. However, Egypt is overwhelmingly a Sunni Muslim country and Egyptian laws and long-standing practices are generally designed to safeguard the majority. The two problems mentioned most frequently as impacting on Christian practice are restrictions on building or repairing churches and the operation of laws banning “ridiculing or insulting heavenly religions (Islam, Christianity and Judaism) or inciting sectarian strife”, commonly referred to as blasphemy law.

14. Sectarian tensions have increased in Egypt since the 1970s, due in part to economic problems and to weakening of law and order mechanisms. The resulting outbreaks of sectarian violence have mostly taken the form of vandalism and destruction of property and have occurred mostly in Upper Egypt, although Cairo and Alexandria have also been affected.

15. Egypt has experienced a number of significant changes in recent years. The Mubarak regime was overthrown in January 2011 and replaced with a military council which ruled until elections in June 2012, which were won by Mohammad Morsi of the Muslim Brotherhood. Morsi's government was removed by the military in July 2013 and replaced with a military dominated interim government which banned the Muslim Brotherhood in December 2013 and arrested between 22,000 and 29,000 Muslim Brotherhood supporters or suspected members, of whom some 7,000 remained in pre-trail detention in July 2014.[6] Elections held in May 2014 saw former defence Minister Abdul Fatah al-Sisi elected President

    [6] Immigration Report pp  49-50 and Human Rights Watch Annual Report 2015, available at

16. While there is no evidence of a significant increase in sectarian violence during the time Morsi was President, there was an increase in the number of ultra conservative Islamist groups such as Salafist parties and in the frequency of negative and sometimes inflammatory anti-Christian statements which in turn contributed to an increase of threats and attacks on Christian communities in some areas.[7]

    [7] Issues Paper Egypt: Treatment of Coptic Christian & State Protection, Department of Immigration and Border Protection 3 March 2012 [Immigration Report] pp 54-55 and DFAT Thematic Report. 3.36

17. Coptic Christians were greatly concerned about their future under an Islamist government and most welcomed the military intervention which removed Morsi. This contributed to the most serious outbreak of anti-Christian sectarian violence in recent times, which occurred in July and August 2013 when supporters of President Morsi attacked Christian churches, property and people. According to DFAT this violence was not orchestrated by the leadership of the Muslim Brotherhood but was carried out by radical supporters of the group in retaliation for what they saw as the significant role Christians played in Morsi's removal.

18. According to DFAT there has been a significant decrease in the scale and number of attacks against Copts under the Sisi administration. In a similar vein the US Committee for International Religious Freedom 2015, which covers 2014 and early 2015 stated that, while sporadic violence continued, the number and severity of violence incidents targeting Copts and their property had decreased significantly since the previous year.

19. In their Thematic Report of November 2015 DFAT stated that it was their assessment that the day to day life for most Coptic Christians was not overtly affected by communal tensions adding that:

    ...most Egyptians, especially those living in urban areas, work, live and socialize together with little regard to each other's religious identity.

    However, small-scale disputes (such as neighborhood disagreements) can adopt religious overtones and escalate into community-level violence. This is particularly the case in poorer rural and urban areas. Spikes in communal tensions can also coincide with broader political upheavals (2.20).

20. Similarly, after reviewing information from a range of sources the UK Border Agency concluded in its Country Information and Guidance Egypt: Christians report of 30 June 2014, 'although Christians do face personal and collective societal discrimination and repeated instances of sectarian violence, Christians in Egypt are not in general at risk of persecution or ill-treatment.’[8]

    [8] Country Information and Guidance Egypt: Christians’, UK Border Agency, 30 June 2014, pp.7-8, available at

21. However, the most recent United States International Religious Freedom Report[9] indicates that the Egyptian government failed to respond to or prevent sectarian violence in some cases, in particular outside of major cities according to human rights advocates and continued to hold “reconciliation sessions” to address incidents of sectarian violence which adopted findings favoring members of the majority Muslim community most of the time. “Reconciliation sessions” after sectarian attacks were used instead of prosecuting perpetrators and these sessions preclude recourse to the judicial system because in most cases the parties agreed to drop all formal charges and lawsuits and stipulated by the terms of the session. They failed to prosecute It was also reported that religious minorities continued to face significant threats of sectarian violence according to religious and human rights groups. There were also reports of lethal sectarian violence continuing over the year.

    [9] United States, Bureau of Democracy, Human Rights and Labour, International Religious Freedom Report for 2015

22. The November 2015 Thematic Report also indicates that Copts have access to state protection in Egypt. According to the report:

    DFAT assesses that on a day-to-day basis in urban areas, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered to Copts by individual security officials.

    Discrimination

23. Discrimination based on religion is prohibited under Egyptian law; however, Copts continue to face official and societal discrimination. Amnesty International reports that it and other human rights organisations have documented a pattern of discrimination against Coptic Christians in Egypt that has been prevalent for ‘decades’.[10] Similarly, the European parliamentary Research Service states that Egypt’s religious minorities, including Copts, have suffered for decades from discrimination.[11]

    [10] Amnesty International 2013, Egypt: Security forces abandon Coptic Christians during deadly attack in Luxor, 23 July Accessed 17 December 2013 CX316551; Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March Accessed 20 May 2013 CX307094

    [11] European Parliamentary Research Service 2014, Egypt’s New Constitution and Religious Minorities’ Rights -  Prospect of Improvement?, 23 January, p.1 Accessed 11 February 2015 CIS2F827D92044

24. Egypt has legislation that prohibits discrimination on the basis of religion; however, in practice these laws are rarely enforced.[12] In October 2011, the Supreme Council of the Armed forces issued a decree to amend provisions of the Egyptian Penal Code to explicitly prohibit discrimination on religious grounds.[13] The decree added Article 161(ii), which defines discrimination as ‘any action, or lack of action, that leads to discrimination between people or against a sect due to gender, origin, language, religion, or belief’.[14] It establishes a minimum and maximum fines (from EGP30,000 (approximately AUD 4,929)[15] to EGP50,000 (AUD 8,216)) and/or imprisonment, for perpetrators of acts of discrimination. The article adds more severe penalties for government officials who commit a discriminatory act,[16] with a minimum sentence of three months’ imprisonment and/or a minimum fine of EGP50,000 (AUD 8,216) and a maximum fine of EGP100,000 (AUD 16,438).[17] USDOS reports, however, that the amendment does not include any enforcement mechanisms.[18] The report notes that during 2013 ‘there were no indications in the media that the government enforced the 2011 amendments to the penal code that make discrimination a crime.’[19] Similarly, the January DFAT 2014 report on Copts states that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[20]

    [12] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206; Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

    [13] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

    [14] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2 Accessed 17 December 2013

    [15] Based on foreign exchanges rates of 4 February 2014 obtained from  US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206

    [17] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2 Accessed 17 December 2013

    [18] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

    [19] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206

    [20] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

25. The 2014 Constitution officially recognises Coptic Christianity and includes an anti‑discrimination clause. Article 53 of the Constitution prohibits discrimination on the basis of religion and belief.[21] Although the Constitution reaffirms Islam as the state religion, it recognises Christianity as one of the ‘heavenly religions’ and acknowledges the Coptic Orthodox Church as an official sect of Christianity.[22] However, Minority Rights Group International states that ‘it remains to be seen whether there will be a substantive legal and policy shift towards addressing the deep-seated discrimination Copts have faced in public office, education, political participation and other areas of civic life’.[23] Reporting on the likely effect of the Constitution, the EIPR states that ‘taking into account that lack of legal implementation and a weak police response are among the main causes of violence and discrimination of religious minorities in Egypt, it is unlikely that any improvement in the legal framework will bring changes to the situation on the ground.’[24]

    [21] Constitution of the Arab Republic of Egypt 2014 – Unofficial Translation Accessed 11 February 2015 CIS2F827D92048

    [22] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158; ‘What’s new in Egypt’s draft constitution’ 2013, BBC News, 3 December Accessed 5 December 2013 CX316553

    [23] Minority Rights Group International 2013, World Directory of Minorities and Indigenous Peoples - Egypt: Copts, November, UNHCR Refworld Accessed 31 January 2014 CX317623

    [24] European Parliamentary Research Service 2014, Egypt’s New Constitution and Religious Minorities’ Rights -  Prospect of Improvement?, 23 January, p.6 Accessed 11 February 2015 CIS2F827D92044

1. Sources indicate that Copts continue to face official and societal discrimination. Several reports were located stating that despite initial optimism on the part of Copts, and public messages of support by President el-Sisi for the Coptic community, discrimination against Copts has continued since el-Sisi was elected.[25] Regarding societal discrimination, DFAT assesses that that ‘community prejudice’ against Copts is ‘pervasive’ but the likelihood of encountering societal discrimination is ‘heavily dependent on geographic and socio‑economic factors’, with discrimination ‘low‑level and infrequent’ in middle class urban areas but ‘higher’ in poor urban and rural areas.[26] According to DFAT, ‘most Copts in both urban and rural areas do not experience harassment and discrimination in their daily lives and live alongside Muslims across all social classes, genders and backgrounds’.[27] Nevertheless, DFAT states that since the January 2011 revolution, there have been reports of ‘harassment and intimidation of Christians and Muslims by more conservative Muslims’ and notes that it is aware of ‘anecdotal reports of Christian men and women being encouraged – or cajoled – to convert to Islam.’[28] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[29] According to Hassiba Hadj Sahraoui, Deputy Director of Amnesty International’s Middle East and North Africa division, ‘Coptic Christians across Egypt face discrimination in law and practice.’[30]

   [25] Amin, S 2015, ‘What now for Egypt’s Christians?’, Ahram Online, 13 January Accessed 10 February 2015 CXBD6A0DE1298; Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714; Kingsley, P 2015, ‘Egyptian President Attends Coptic Christmas Eve Mass in Cairo’, The Guardian, 8 January Accessed 6 February 2015 CXBD6A0DE1385

   [26] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [27] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [28] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.11 CIS27158

   [29] UK Border Agency 2014, Country Information and Guidance Egypt: Christians, 30 June, p.7 OG180885B8

   [30] Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March Accessed 20 May 2013 CX307094

2. Reports published by the United States Department of State,[31] Carnegie Endowment,[32] Open Democracy[33] and Ahram Online[34] between 2015 and 2013 all state that Copts face official discrimination in Egypt, particularly with respect to appointments to senior positions within the public sector, public universities, security forces, judiciary and Egyptian government. In its January 2014 report on Copts in Egypt, DFAT provided a somewhat different assessment stating that ‘Copts experience low levels’ of official discrimination.[35] While DFAT reports that ‘there is a low level of discrimination against Copts in public sector employment’ it also notes that ‘the percentage of Copts in the Egyptian civil service is broadly representative of the religious breakdown of the population.’[36]  DFAT does report, however, that ‘societal discrimination can create a “glass ceiling” for promotions’ as ‘Copts tend to be under-represented in senior civil servant roles and in the upper ranks of the military and security services.’[37] According to DFAT ‘subtle favouritism and patronage could rule Copts out of senior positions.’[38]

   [31] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, pp. 13-15 Accessed 29 July 2014 CIS29206

   [32] Brownlee, J 2013, Violence Against Copts in Egypt, 14 November, Carnegie Endowment for International Peace Accessed 10 December 2013 CX316406

   [33] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714

   [34] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714 Ahram Online is a state-owned English-language news website published by Al-Ahram Establishment, Egypt’s largest news organisation. Al Ahram Establishment publishes Arabic-language daily Al-Ahram, which is the oldest and one of the most widely read daily newspapers in Egypt and the Arab world. See Ahram Online n.d., About AhramOnline Accessed 2 December 2013; BBC Monitoring 2013, Media Environment Guide: Egypt January 2013, 28 January, Open Source Center – Accessed 23 May 2013; Ezzat, D 2013, ‘Egyptian Christians struggle to overcome minority status’, Ahram Online, 27 September Accessed 3 October 2013 CX316469

   [35] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [36] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

   [37] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

   [38] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

3. The May 2017 DFAT Country Information Report[39] - Egypt indicates that Coptic Christians have experienced a changed security situation in Egypt. According to the report:

   2.30Since December 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches. On 11 December 2016, an Islamic State suicide bomber targeted a church service in Cairo, killing 29 and injuring 49. On 19 February 2017, a group calling itself ‘IS Egypt’ released a video calling for the targeting of Coptic Christians. Two major attacks against Palm Sunday church services occurred on 9 April, both claimed by Islamic State. The first attack occurred in Tanta, killing 27 and injuring 70. The second occurred at St. Mark’s Cathedral in Alexandria, the historical seat of the Coptic Pope, killing at least 16 and injuring 66. Pope Tawadros, head of the Coptic Church, was delivering a service at the cathedral at the time but escaped unharmed. In addition to these attacks on churches, around 154 Christian families fled the northern Sinai town of Al-Arish in January-February 2017 after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants. The Grand Imam of al-Azhar strongly condemned the church attacks, while a faction of the Brotherhood also issued a statement of condemnation.

   2.31In response to the Palm Sunday bombings, Sisi issued a Presidential Decree on 9 April 2017 declaring a nation-wide state of emergency, the first under the 2014 Constitution. The decree was passed unanimously by Parliament on 11 April. The state of emergency is governed by Law 162 of 1958, ‘The Emergency Law’. While the exact details of the Emergency Law and how it will be applied were unclear at the publication date, it is likely that the military will be granted extended powers. DFAT assess that detentions and arrests are likely to increase as a result of the declaration of a nation-wide state of emergency.

   [39] Department of Foreign Affairs and Trade 2017, DFAT Country Information Report- Egypt, 19 May, at pp.7-8

   FINDINGS AND REASONS

   Is the applicant(s) a ‘refugee’ within the meaning of s.36(2)(a) of the Act?

4. The applicant (and the ‘secondary’ applicant) claim to fear returning to Egypt because of discrimination and persecution they would face as Coptic Orthodox Christians. In addition to this, they have both been targeted (as claimed) by extremist religious cells in their suburb because the applicant was also a former officer with rank in the Egyptian air force from [specified year] to [year]. Despite being a former officer of rank in the Egyptian air force, the applicant and his wife claim they will continuously be targeted especially since the Muslim Brotherhood government of former President Morsi was ousted by the military led by General Sisi – now President Sisi. The Tribunal noted that the applicants have claimed to be Coptic Orthodox Christians in their Protection visa application also.

5. The Tribunal accepts that both applicants were Coptic Orthodox Christians and the Tribunal does not doubt both applicants’ Christian background and beliefs.

   Claims that the applicant had suffered discrimination in the Egyptian military while serving during the years [specified].

6. It was noted by the Tribunal that both the applicant and the representative in their submissions to the Tribunal made comments that the applicant had experienced a considerable degree of ‘discrimination’ because of his Coptic Orthodox religion while serving in in the Egyptian Air force. The applicant advanced the claim that he was constantly denied furloughs when others in his unit (Moslems) were provided with privileges and the requested ‘time-off’ to be with their families when required or requested. He also advanced the claim that he was constantly ‘stationed away from his hometown’ whereas others would be stationed close to their homes. Again, this practice by the applicant’s superiors was attributed to his religion – being a ‘Coptic Orthodox Christian’. The Tribunal considered these claims but concluded that the ‘discrimination’ claimed by the applicant was without substantial proof. The Tribunal’s conclusions were drawn from the facts the applicant and his represented tendered in their submissions. First, the Tribunal was told that the applicant in [year] had joined the prestigious Egyptian Air force Academy and after four years of intense training he – as a [rank] (his initial rank) then proceeded to serve in the Egyptian Air force from [specified year] until his own choice retirement in [year] – with the rank of ‘[higher rank]’. The Tribunal concedes, that the military – all military operate in regards to their own ‘codes’ of practise so to speak which make or break individual careers, the applicant’s period of service and rank  before his retirement, convinces the Tribunal that ‘discrimination on religious grounds’ did not play a significant role in the applicant’s progress from commissioned ‘young’ ‘[rank]’ to upon retirement, the rank of ‘[higher rank]’. Second, the way he was treated as claimed, does not display an officer that was being badly treated because of his religious beliefs but one that was applied the codes and orders all officers subject themselves to when joining their country’s military. Therefore, these claims are not accepted as proven by the Tribunal and the Tribunal will consider the other claims as they occurred after the applicant had become a de-commissioned officer.

7. The country information referred to earlier in this decision confirms (that despite recent efforts to ameliorate communal violence and religious antagonisms by the Sisi government) there is discrimination at all levels of Egyptian society against ‘Christians’. The Tribunal recognises this is religiously motivated and is aimed at all religious (non-Muslim) minorities in present-day Egypt. The applicant’s experience in relation to seeking effective protection under the rule of law (in his home suburb) within the Egyptian State apparatus because he and his wife (and family) are ‘Christians’ (Copts) is not unique.

8. Enforcement of a generally[40]applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[41] As Brennan CJ stated in Applicant A:

   the feared persecution must be discriminatory…[it] must be “for reasons of” one of [the prescribed] categories. This qualification …excludes persecution which is no more than punishment of a non- discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the converter with mark of ‘refugee.’[42]

   [40] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.

   [41] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].

   [42] Applicant A v MIEA (1997) 190 CLR 225, at 233.

9. The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[43] In Applicant A Dawson J agreed with the observations of the Full Federal Court in that case that:

   Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.[44]

   [43] See eg, Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA (1999) 57 ALD 613 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001). See further discussion below under the heading ‘Value-laden laws’.

   [44]Applicant A v MIEA (1997) 190 CLR 225, at 245 citing with apparent approval MIEA v Respondent A and B (1995) 57 FCR 309 at 319. Note that the description of harsh punishment under a generally applicable law as ‘persecution’ is inconsistent with High Court authority which holds that persecution necessarily involves discrimination, as do the requirements of persecution in s.91R(1)(a) and (c).

10. Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[45] In some circumstances, it may be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention.

    [45] See Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001), at [50].

11. The High Court in Chen Shi Hai v MIMA confirmed that laws or policies which target, or only apply to, or impact adversely upon, a particular section of the population are not properly described as laws or policies of general application:

    Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, “black children”, as distinct from children generally - cannot properly be described in that way. … To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.[46]

    [46] Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] to [21]. See also per Kirby J at [72] and Wang v MIMA (2000) 105 FCR 548 at [50]-[68] where Merkel J (Wilcox and Gray JJ agreeing) discussed what the High Court and courts in other jurisdictions have said about ‘laws of general application’. Referring to Chen, his Honour at [65] reiterated that ‘[a] law that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing group, is not properly described as a law of general application’. Thus, laws regulating the practice of religion, requiring that they be practised or observed in a particular way or targeting or applying only to persons practicing religion, are not laws of ‘general application’. Nevertheless, consideration may still need to be given as to whether such a law has a legitimate object (see below). Although a law that is general in its terms may impact adversely upon a particular group, this of itself, will not necessarily mean it is not a law of general application, see comments in SZDNE v MIMIA [2004] FMCA 717 (Raphael FM, 14 October 2004) at [10]. The Court described the Nepalese law against bovicide as ‘truly a law of general application. It may have a different effect on different people because persons such as the applicant have no religious views concerning cows, but the law is the same for him as it is for the highest caste of Brahmin who may reside in Nepal’.

12. In this case, the Tribunal has considered the country information as set out above and notes that discrimination on the basis of religion is prohibited under Egyptian law, however there are reports (referred to earlier) that confirm that Coptic Christians continue to face official and societal discrimination and that this has been prevalent for decades. The US Department of State’s International Religious Freedom report notes that although Egypt has legislation that prohibits discrimination on the basis of religion; in practice these laws are rarely enforced.[47] In October 2011, while the Supreme Council of the Armed forces issued a decree to amend provisions of the Egyptian Penal Code to explicitly prohibit discrimination on religious grounds[48] and added Article 161(ii), defining discrimination as ‘any action, or lack of action, that leads to discrimination between people or against a sect due to gender, origin, language, religion, or belief’,[49] and provides for fines or imprisonment, for perpetrators of acts of discrimination this amendment however does not include any enforcement mechanisms.[50] Further there have been no indications according the United States Department of State that during 2013 that the government enforced the 2011 amendments to the penal code that make discrimination a crime.[51] In 2014 DFAT has also reported that while ‘anti‑discrimination laws exist, these can be difficult to implement’.[52]

    [47] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206; Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

    [48] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

    [49] US Department of State 2012, International Religious Freedom Report 2011 - Egypt, 30 July, Section 2 Accessed 17 December 2013

    [50] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.4 Accessed 29 July 2014 CIS29206

    [51] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, p.18 Accessed 29 July 2014 CIS29206

    [52] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

1. Although the 2014 Constitution officially recognises Coptic Christianity and includes an anti‑discrimination clause and Article 53 of the Constitution prohibits discrimination on the basis of religion and belief,[53] country information indicates that it still remains to be seen whether there will be substantive legal and policy towards addressing the deep-seated discrimination Copts have faced in public office, education, political participation and other areas of civic life’.[54] The European Parliament also notes that taking into account that lack of legal implementation and a weak police response which are among the main causes of violence and discrimination of religious minorities in Egypt; it is unlikely that any improvement in the legal framework will bring changes to the situation on the ground.[55]

   [53] Constitution of the Arab Republic of Egypt 2014 – Unofficial Translation Accessed 11 February 2015 CIS2F827D92048

   [54] Minority Rights Group International 2013, World Directory of Minorities and Indigenous Peoples - Egypt: Copts, November, UNHCR Refworld Accessed 31 January 2014 CX317623

   [55] European Parliamentary Research Service 2014, Egypt’s New Constitution and Religious Minorities’ Rights -  Prospect of Improvement?, 23 January, p.6 Accessed 11 February 2015 CIS2F827D92044

2. The Tribunal notes that DFAT has assessed community prejudice against Copts to be pervasive and the likelihood of encountering societal discrimination is ‘heavily dependent on geographic and socio‑economic factors’, with discrimination ‘low‑level and infrequent’ in middle class urban areas but ‘higher’ in poor urban and rural areas.[56] According to DFAT, ‘most Copts in both urban and rural areas do not experience harassment and discrimination in their daily lives and live alongside Muslims across all social classes, genders and backgrounds’.[57] Nevertheless, DFAT states that since the January 2011 revolution, there have been reports of ‘harassment and intimidation of Christians and Muslims by more conservative Muslims’ and notes that it is aware of ‘anecdotal reports of Christian men and women being encouraged – or cajoled – to convert to Islam.’[58] In its June 2014 policy document on Copts, the UK Border Agency similarly assessed that Christians face ‘personal and collective societal discrimination.’[59] According to Hassiba Hadj Sahraoui, Deputy Director of Amnesty International’s Middle East and North Africa division, ‘Coptic Christians across Egypt face discrimination in law and practice.’[60]

   [56] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [57] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [58] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.11 CIS27158

   [59] UK Border Agency 2014, Country Information and Guidance Egypt: Christians, 30 June, p.7 OG180885B8

   [60] Amnesty International 2013, Egypt’s Coptic Christians must be protected from sectarian violence, 27 March Accessed 20 May 2013 CX307094

3. As noted, earlier reports published by the United States Department of State,[61] the Carnegie Endowment,[62] Open Democracy[63] and Ahram Online[64] between 2015 and 2013 all refer to Copts facing official discrimination in Egypt within the public sector including government, universities, security forced and the judiciary. Although DFAT has provided a different assessment stating that ‘Copts experience low levels’ of official discrimination[65] and while DFAT reports that ‘there is a low level of discrimination against Copts in public sector employment’ it also notes that ‘the percentage of Copts in the Egyptian civil service is broadly representative of the religious breakdown of the population.’[66]

   [61] US Department of State 2014, International Religious Freedom Report for 2013: Egypt, 28 July, pp. 13-15 Accessed 29 July 2014 CIS29206

   [62] Brownlee, J 2013, Violence Against Copts in Egypt, 14 November, Carnegie Endowment for International Peace Accessed 10 December 2013 CX316406

   [63] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714

   [64] Fayek, M 2014, Copts in El Sisi’s Egypt, 29 May, Open Democracy Accessed 10 February 2015 CX1B9ECAB9714 Ahram Online is a state-owned English-language news website published by Al-Ahram Establishment, Egypt’s largest news organisation. Al Ahram Establishment publishes Arabic-language daily Al-Ahram, which is the oldest and one of the most widely read daily newspapers in Egypt and the Arab world. See Ahram Online n.d., About AhramOnline Accessed 2 December 2013; BBC Monitoring 2013, Media Environment Guide: Egypt January 2013, 28 January, Open Source Center – Accessed 23 May 2013; Ezzat, D 2013, ‘Egyptian Christians struggle to overcome minority status’, Ahram Online, 27 September Accessed 3 October 2013 CX316469

   [65] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.7 CIS27158

   [66] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report Egyptian Copts, 28 January, p.12 CIS27158

4. The country information indicates that while Egypt has anti-discrimination laws, the information confirms that these are often not enforced when it relates to Coptic Orthodox Christians. Therefore, the Tribunal accepts that as Coptic Christians, the applicant and his wife have faced discrimination in a manner in which he has been singled out and abused for attempting to attend their places of worship in Egypt. The Tribunal also accepts the applicant’s claim that he had been singled out in his local area by Muslim extremists and their supporters because of his known past, as not only Coptic Orthodox Christian but also as former member of the Egyptian Air force with a significant rank (upon retirement)[67]. The applicant’s distinctive motor vehicle registration plates on his car made him and anyone who travelled with him a distinct target for threats verbal or otherwise from any extremist element who refused to acknowledge the fact that the former Muslim Brotherhood government had been forcibly removed from office by the military. Indeed, the wilful damage caused to the applicant’s motor vehicle and the apprehensions he, his wife and other family members felt in attending normal local church events or day-to-day activities after the fall of Morsi government, is real testimony that they (in particular, the applicant) were in danger of being singled out for acts of violence because of their religious beliefs but also because of their direct link with the Egyptian defence force. All incidents, as the Tribunal was told in evidence, were reported to the local police. However, the manner in which the police investigations were conducted (without any real results) as suggested by the applicant suggests that he (and his wife at time) had very little chance of being provided even minimal state protection because of his situation and this was largely due to an innate discrimination within the law enforcement sectors of the Egyptian state.

   [67] The rank of that of [rank] (with a military pension)

5. The Tribunal also considered that having lost his security in his suburb or residence, the applicant (even as former officer of rank in the Egyptian defence forces) had no other recourse open to him but to consider to leave Egypt and seek safer refuge in more stable countries in the West – such as Australia, where the applicant’s children were living. The situation in Egypt at the time of the applicant’s departure (with his wife) (in 2014) was at a very excited and uncertain level. As one would remember an elected government had been overthrown by the military (even though it was head by Muslim Brotherhood) and as a result instability both political and civil was rife in most city centres. The Tribunal understands that this time would have been full of uncertainties and fears for the applicant – a known Coptic Christian and a former member of the military. The Tribunal accepts the applicant’s descriptions of the time following the military coup and acknowledges that he would have felt significant anxieties about his present well-being (and that of his wife) and future security. The Tribunal is cognizant of the fact that as a known former officer in the Egyptian air force, the applicant faced a very real risk of persecution wherever he (and his wife) chose to live in Egypt because he was known for his military past ( having a motor-vehicle with distinct military number plates and registration) and this was further complicated (in risk) because he was also a practising Coptic Orthodox Christian. In other words, the Tribunal considers his fears and concerns as substantial and credible. The Tribunal also notes that since April 2017, despite the declaration of a state of emergency by the Egyptian government sectarian violence has been on the increase and Coptic Orthodox Christians have suffered horrendous casualties and deaths as a result of who they are and what they believe in regardless of the assurance and willingness of the Egyptian state to protect them against attacks by radical non-Christian elements and despite legal guarantees expressed in the clear language by Egyptian law and the Egyptian Constitution. The Tribunal has noted recent developments recent developments regarding an increase in sectarian violence and the targeting of Coptic Christians and other religious minorities and accepts that the applicant had been targeted in the past by sympathisers belonging to radical religious elements because he was a Coptic Christian and due to his past work as high-ranking officer of the Egyptian air force – a past that was well-known locally by all due to his business and his association with local Coptic Christian groups and by the distinct military insignia number plates he had on his motor-vehicle (as registered by the local authorities).

6. The Tribunal also accepts that the applicant had attempted to seek the protection from the local Egyptian police because of threats and damage caused to the applicant’s motor-vehicle but had very little protection provided to him. Further, the Tribunal accepts that the applicant and his wife had to leave Egypt in order to escape any reprisals from religiously radical political groups and that sanctuary and safety at that time could only be located in a foreign country and not within Egypt itself. The Tribunal accepts the evidence of the applicant that the applicant would face difficulties if he was to return to Egypt and attempted to carry on with his life. The Tribunal notes that the Egyptian National Police are responsible for law enforcement nationwide and various sources including DFAT[68] indicate that police investigative skills remain poor and they suffer from shortfalls in training and equipment. The Tribunal acknowledges that the security situation has changed to an extent since 2013 and police in urban areas are more likely to provide more effective protection, DFAT nevertheless notes that the Egyptian police are a reflection of the Egyptian population and the increasingly conservative nature of Egyptian society is mirrored in the police force, particularly in rural areas. In areas outside major cities, the police live in the community they police and are subject to local pressures to make choices that are congruent with dominant social mores. The United States Department of State noted in 2013 that there were credible reports that security forces failed to prevent or respond to societal violence against Coptic Christians and other religious minorities. The UK Home Office’s Country Information Guidance, Egypt: Christians noted in “MS (paragraph 151(1)) the UK Upper Tribunal found that there was inadequate state protection for Coptic Christians.[69] Inadequate protection which had been further made evident with repeated attacks on Coptic Christians this year in Egypt.

   [68] United States Department of State Country Reports on Human Rights Practices – Egypt, 27 February 2014; DFAT Country Report, Egypt, 28 January 2014.

   [69] UK Home Office Country Information and Guidance Egypt: Christians, 14 July 2014.

7. In light of all the evidence, including the country information, the Tribunal is of the view that while official and societal discrimination of themselves may not constitute serious harm, the cumulative effect of these in conjunction to the applicant’s religion and his past activities as a commissioned officer in the Egyptian defence forces which was widely known and resented by some may be sufficiently serious as to constitute persecution.

8. The Tribunal is satisfied that cumulatively there is a real chance that the applicant is at risk of serious harm if he and his wife return to Egypt now or in the reasonably foreseeable future and there is a real chance that persecution will occur. This is based on the applicant’s past experiences (prior to leaving Egypt for Australia) of discrimination and harm as Coptic Christians and as a Christian minority and him being singled out for particular attention by local extremists cells because of his association with the Egyptian defence forces that supports a conclusion that his fear is well-founded. The country reports and recent disturbing developments in Egypt indicate that while a state of emergency had up to now contained sectarian violence, these disturbing recent events, indicate to the Tribunal that sectarian violence still occurs and there has been no appreciable change in the treatment of Coptic Christians, other Christian minorities and other elements of Egyptian society.

9. In this instance, the Tribunal considers the applicant’s cumulative circumstances are grounds for a well-founded fear of persecution.

10. Therefore, the Tribunal finds that the treatment that the applicant (and his wife) would face on his return to Egypt amounts to serious harm on cumulative grounds. Therefore, the Tribunal finds he satisfies s.91R (1) of the Act. Furthermore, the Tribunal is of the view that there is a real chance of persecution on the grounds of the applicant’s religion which includes his past experiences of discrimination and persecution and his membership of a particular social group namely as Egyptian Coptic Christians and  which is further compounded by his long association with the Egyptian defence forces (which was widely known) who has no safe place of residence because of his involvement in military and has been targeted for harm.

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and therefore the applicants satisfy the criterion for a refugee set out in s.36(2)(a) of the Act

12. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a) of the Act.

    DECISION

13. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    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.

    …