1727997 (Refugee) - [2021] AATA 4300

1727997 (Refugee) [2021] AATA 4300 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1727997
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Jason Pennell
DATE:3 August 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.

Statement made on 3 August 2021 at 10.02am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Sunni Muslim – imputed religion as Quranist convert – daughter’s conversion to Quranism – imputed political opinion – hostile to government due to son’s political activities– fears harm from daughter’s husband’s family –– particular social group – Sunni Muslim whose child has converted to another religion – no family remaining in Egypt –economic hardship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
NAQJ v MIMIA [2004] FCA 946
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 57
Saliba v MIMA (1998) 89 FCR 38
SCAT v MIMA [2003] FCAFC 80
SCAT v MIMIA [2002] FCA 962
VCAD v MIMIA [2004] FCA 1005
WZAOO v MIAC (2012) 134 332

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 October 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 29 January 2015. The delegate refused to grant the protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant appeared in-person before the Tribunal on 19 March 2021 to give evidence and present arguments. In addition, [Ms A] (the applicant’s daughter) appeared before the Tribunal to give evidence and make submissions in support of the applicant.
The hearing was assisted by an interpreter in the Arabic and English languages. The Tribunal was satisfied the applicant understood the interpreter and the questions put to her during the hearing. The Tribunal further notes that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Applicant’s Identity and Country of Reference

The applicant claims she was born on [date] in Cairo Egypt.[1] She provided a copy of her Egyptian passport to the Department confirming her date and place of birth.[2] There is no evidence to suggest this is a bogus document and as such, the Tribunal accepts the applicant’s identity.
[1] Applicant’s Application for a Protection Visa dated 30 January 2015; Department File: [deleted] Doc ID: [deleted]
[2] Department File: [deleted] Doc ID: [deleted] @ Folio 89.
There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Egypt and as such her protection claims will be assessed against Egypt as the country of reference and ‘receiving country’ respectively.

Applicant’s Migration History

The applicant’s migration history is detailed in the delegates decision[3] as follows.
[3] Protection Visa Decision Record AAT File No:1727997 Doc ID:3782656

Date

Details

[May] 2007-

[July] 2007

Applicant travelled to Australia on a Tourist visa to visit her son, [Mr B], and his family.

[Sep] 2010-

[March] 2011

Applicant travelled to Australia on a Tourist visa to visit for the birth of her son’s second child.

[May] 2012

The applicant arrived in Australia on a Tourist visa following the breakdown of her daughter’s marriage.

[February] 2013

The applicant requested the 8503 condition[4] on her tourist visa be waived.

[March] 2013

The waiver was approved

[April] 2013

The applicant became an unlawful noncitizen in Australia

29 January 2015

The applicant lodged an Application for a Protection visa

[4] The 8503-visa condition ('No Further Stay' condition) prevents the visa holder from applying for many temporary and permanent visas while they are in Australia. Condition 8503 is mandatory on the following visas: Visitor visa (subclass 600) (Sponsored Family stream) (Approved Destination stream) and (Tourist stream). A ‘No Further Stay’ condition does not prevent a person from applying for other visas upon departing Australia.

Claims for protection and supporting documentation

The applicant provided a statement that was attached to her application for a protection[5] visa detailing her claims. The delegate in the Department’s decision[6] summarised the applicant’s claims as follows:[7]
(a)The applicant is a practising Sunni Muslim and a retired public servant from Cairo, Egypt. She has three children, all of them have migrated to Australia. Following the death of her husband in 2009, the applicant lived at home alone. The applicant has [older] brothers in Egypt. One of them lives in the same apartment building as the applicant with his [children]. One lives in the same suburb, a few streets away from the applicant.
(b)The applicant arrived in Australia in May 2012 to support her youngest daughter, [Ms A],[8] whose marriage had broken down. The applicant requested a waiver of the 8503 condition on her last Tourist visa to continue to provide [Ms A] with emotional and physical support. She was, however, never notified of the outcome of that request by her migration agent.
(c)The applicant’s eldest daughter, [Ms C], arrived in Australia in June 2013 with her three children. In Australia, [Ms C] revealed to the applicant that she had converted to Quranism and had been mistreated by the family of her husband due to her conversion. [Ms C] has since been granted protection in Australia.
(d)The applicant fears that, as an elderly widow who lives on her own, she would be vulnerable to the abuse and harm from the family of [Ms C]’s husband due to [Ms C]’s conversion to Quranism
(e)The applicant claims that the authorities in Egypt are not able to provide her with adequate protection, nor can she relocate within Egypt to avert the feared harm due to her age.

Applicant’s Evidence
[5]    Applicant’s Application for a Protection Visa dated 30 January 2015; Department File: [deleted] Doc ID: [deleted]
[6]    Protection Visa Decision Record @ p.2 AAT File No: 1727997 Doc ID: 3782656
[7]    ibid
[8] The applicant’s daughter now known as [Ms A’s other name]

The applicant’s evidence to the Tribunal was that she was born on [date] in Cairo, Egypt. The applicant was the youngest child in her family, having [older] brothers. The applicant completed high school, having attended [named high school], but did not attend university or college. The applicant worked in Egypt as a public servant but stopped work approximately 10 years prior to arriving in Australia.
The applicant’s evidence was that she had [elder] brothers, all of whom have now passed away. The applicant provided the Tribunal with Death Records[9] for three of her brothers which state that they all passed away in 2019. Her evidence to the Tribunal was that her remaining brother passed away in 2020.
[9] AAT File No: 1727997 Doc ID: 8049335, Doc ID: 8049336 & Doc ID: 8049337
The applicant was married to [Mr D] in 1977. Her husband passed away in or about 2009. She has three children being two daughters, [Ms C] and [Ms A], and a son, [Mr B]. All the applicant’s children live in Australia.
The applicant’s son was married in or about 2005. Her evidence was that she travelled to Australia in 2007 and 2010 to visit her son upon the birth of his first and second sons. Her evidence was that her son lives in [Melbourne] and now has [number of children].
In or about 2010, [Ms A] married [a named person] ([Ms A]’s husband) and moved to Australia. [Ms A]’s marriage broke down in or about 2012. As a result, the applicant returned to Australia on a Tourist visa in May 2012 to help care for [Ms A] and her child (born in [year]) in what she described to the Tribunal as a very stressful time for [Ms A]. The applicant arrived on a Visitor visa that was valid for one year. It was her evidence that, at the time of arriving in Australia, she had no intention of overstaying or extending the period of her visa.[10]
[10] Applicant’s statement attached to her Application for a Protection Visa dated 30 January 2015; Department File: [deleted] Doc ID: [deleted]
The applicant’s evidence was that her daughter [Ms C] was married in Egypt in or about 2001. [Ms C] had been encouraged by her father and husband to explore Islam which led to her reading about Quranism and exploring the Quranist website Ahl Al Quran.[11] The applicant’s evidence was that [Ms C] had converted to Quranism. As a result of having converted to Quranism, [Ms C] had a prolonged and serious conflict with her husband and his family. As a result, she travelled to Australia with her children in June 2013 and applied for and was granted a Protection visa.[12]
[11] AAT File [No] dated [2016] @ [9].
[12] Op Cit @ [22].
The applicant claimed that her son [Mr B] returned to Egypt in or about 2013 to check on the status of [Ms C]’s husband and the situation for [Ms C] generally in Egypt. The applicant’s evidence was that [Ms C]’s husband and his family are strict Sunni Muslims. [Mr B] was shocked to have been threatened by [Ms C]’s husband’s family because of her conversion to Quranism. The Tribunal (differently constituted) has previously accepted that [Ms C]’s brothers-in-law made a complaint of apostasy and defamation of religion against [Ms C] to the police on [date] December 2012.[13]
[13] Ibid.
The applicant claims that, prior to her brothers’ deaths, [Ms C]’s husband’s family would approach them protesting against [Ms C]’s conversion to Quranism, claiming that they would harm her and take her children from her. They criticised the applicant’s brothers and her family claiming that they should never have allowed [Ms C] to covert to Quranism.
The applicant’s evidence is that she is a Sunni Muslim and will remain so until she dies. She has not attended any services or meeting of Quranism with her daughter. Her evidence was that her daughter is an adult (over [age] years old) and old enough to make her own decisions.
The applicant claims that [Ms C]’s husband’s family and Muslim extremists will harm her because she is a supporter of her daughter. The applicant claims that she has no family left in Egypt. All her family, including her brothers, have passed away. As a result, she claims that if she returns to Egypt, she will be the only member of her family in Egypt and will be targeted by [Ms C]’s husband and his family. She claims that they believe she was behind [Ms C]’s ‘escape’ from Egypt, and that as a result she will be harmed.
The applicant’s evidence was that she no longer has any contact with [Ms C]’s in-laws. Her evidence was that she had not had contact with them since [Ms C] was married in 2001. However, she claimed they have connections in Egypt and, through the Egyptian community in Australia, will learn of her return to Egypt. The applicant fears that if she returns, they will contact her and continue their threats against [Ms C], and attempt to steal her daughter back to Egypt.
The applicant also claimed that her son had been involved in protests in Australia against the Egyptian government. The applicant claimed that any person opposed to the Egyptian government will be jailed. She claimed that her son had posted anti-Egyptian government material on [social media]. Despite the Tribunal providing the applicant with an opportunity to provide copies of the [social media] posts, the applicant did not provide the Tribunal with a copy of any such material. Nevertheless, she claimed that, due to his anti-government activities, her son is backlisted in Egypt. As a result, she claims that she will be harmed by the authorities if she were returned to Egypt.
Finally, the applicant claimed that if she is returned to Egypt, she will have nowhere to live. The apartment she lived in belonged to her family. Her evidence was that upon the death of her brothers the apartment was sold. As such, she claimed to have no family, no accommodation, and no money if she were returned to Egypt. As an elderly woman, she would not have anyone to care for her and would not have the capacity to earn a living for the purposes of providing food and shelter. As a result, she claimed that she would suffer serious and significant harm due to her economic circumstances.

COUNTRY INFORMATION

The Tribunal has referred to the DFAT Report on Egypt dated 17 June 2020.[14] In particular, the Tribunal has referred to those parts of the DFAT Report provided in ‘Annexure A’ herein.
[14] Ministerial Direction No 84 of 24 June 2018, made under s.499 of the Act.

ASSESSMENT OF CLAIMS AND FINDINGS

The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

Credibility

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In this case, the applicant appeared before the Tribunal in person to give evidence. Nevertheless, the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[15]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[16]
[15] s.5AAA Migration Act 1958.
[16] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[17] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[18] However, such a benefit 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.
[17] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.
[18] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

Refugee

Applicant’s Relevant Grounds

The applicant submits that her claims fall within the scope of s.5J(1)(a) of the Act[19] by reason of her religion, her political opinion, and as a member of a particular social group.
[19] Applicant’s submission dated 29 July 2020
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion can arise in a variety of circumstances, including the application of general religious-based laws, departing from orthodox beliefs, conversion, apostasy[20] and mixed marriage. Whether the relevant nexus exists will often depend on the motivation of the persecutor.[21]
[20] WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285 in which it was noted that an apostate does not require conversion from one faith to a different faith, but does require abandonment or rejection of the first faith.
[21] VCAD v MIMIA [2004] FCA 1005 at [35] where the Court held that where an applicant avoided military service for religious reasons may have a well-founded fear of persecution where there is an indirect discriminatory effect for reasons of religion.
In this case the applicant claims to hold a well-founded fear of persecution by reason of being imputed with the religion as a Quranist due to [Ms C]’s conversion to Quranism.[22] She claims that in the event that she is returned to Egypt she will be accused by members of [Ms C]’s husband’s family of encouraging [Ms C] to convert to Quranism , and as a Sunni Muslim will be harmed and/or ostracised from the community. In the alternatively she claims that she may be imputed as having converted to Quranism as a result of [Ms C]’s conversion.
[22] Department file [deleted], Letter dated 14 March 2016.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[23] as:
71The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.
[23] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] >
In Prashar v MIMA[24], when considering the Refugee Convention, the Federal Court held that persecution ‘for reasons of religion’ can be persecution because the applicant does not have a particular religion or because the applicant’s conduct offends against the religion of the alleged persecutors.[25] In addition the Court held that the Refugee Convention definition was not limited to people holding a religious belief but extended to non-believers.[26] Justice Madgwick stated:
… if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.[27]
[24]   Prashar v MIMA [2001] FCA 57.
[25]   Ibid.
[26]   Ibid.
[27]   Prashar v MIMA [2001] FCA 57 at [19]. His Honour added that if there is anything in Awan v MIMA [1998] FCA 435 to the contrary, he believes it to be clearly wrong and would not follow it. An appeal was dismissed by the Full Federal Court on other grounds without considering Madgwick J’s reasoning on non-believers: Prashar v MIMA [2001] FCA 1119 and Prashar v MIMA (2001) 115 FCR 197.
Persecution on the ground of religion does not necessarily involve a clash of religious doctrines or of persons of one religion seeking to persecute those of another. In NAQJ v MIMIA,[28] Branson J held that if an applicant did not wish to comply with all of the rites and customs of Islam (that is, she did not accept a ban on living in de facto relationships), it was open to the Tribunal (subject to s.91R of the Act), to conclude that any persecution the applicant faced was as a consequence of religion.[29]
[28] NAQJ v MIMIA [2004] FCA 946 at [16].
[29] NAQJ v MIMIA [2004] FCA 946 at [18]. See also SCAT v MIMIA [2002] FCA 962 at [33] where the Court held that a well-founded fear of persecution could arise for reasons of religion if the risk of harm arose for reasons of the religion of the persecutors and their disposition, by reasons of their religion, towards the asylum seeker. On appeal, the Full Federal Court overturned this decision, however, the discussion of persecution for reasons of religion was not disturbed: SCAT v MIMA [2003] FCAFC 80.
Therefore, the Tribunal is prepared to accept that the applicant’s claims falls within the scope of religion pursuant to s.5J(1)(a) of the Act.
In addition, the applicant submits that her claims fall within the scope of s.5J(1)(a) of the Act by reason her imputed political opinion. She claims that her son, [Mr B], has been involved in protests in Australia against the Egyptian government. It is not necessary that the political opinion be held by the applicant. It is enough that an opinion is imputed to an applicant.[30] In Saliba v MIMA[31] the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[32]
[30] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
[31] Saliba v MIMA (1998) 89 FCR 38 at 49.
[32] Saliba v MIMA (1998) 89 FCR 38 at 49.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[33] states that:
80.Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant.
86.In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - for an act committed by him.[34]
[33] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [80]-[86]; Paragraphs 84-86 of the Handbook were cited with approval in Welivita v MIEA (unreported, Federal Court of Australia, Lindgren J, 18 November 1996).
The applicant’s evidence was that, because of her son’s activities in Australia, her son has been backlisted by the Egyptian authorities. As a result, she claims that she will be imputed with his political opinions and will suffer harm from the authorities upon her return to Egypt. While the applicant has not provided any particular details of her son’s political activities or opinion, it is open to her to claim that she holds a well-founded fear of being persecuted in Egypt as a person who has been imputed to be hostile to the Egyptian government. Therefore, the Tribunal is prepared to accept that her claim falls within the scope of political opinion pursuant to s.5J(1)(a) of the Act.
Finally, the applicant claims to be a member of a particular social group (PSG) as a Sunni Muslim whose child has converted to another religion, namely Quranism. The applicant claims that as a Sunni Muslim she will be harmed and/or ostracised from her community because of [Ms C] having converted to Quranism. In addition, she claims that she is a member of a PSG by reason of her economic circumstances if she is returned to Egypt. The applicant is an elderly person who has limited economic resources. Her evidence was that she has no family remaining in Egypt, no property or home, and no income. As result she claims that she will be seriously harmed if returned to Egypt by reason of the fact that she would not have the capacity to support herself or earn a living.
Section 5L of the Act defines PSG for Protection visa applications. For the purposes of the Act, a person is to be treated as a member of a particular social group if:[35]
(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.
[35] Section 5L of the Act.
The Tribunal has some difficulty in accepting that having a child who has converted to another religion constitutes an innate or immutable characteristic or is so fundamental to the applicant’s identity or conscience or that it distinguishes the group from society as required by s.5L(c) of the Act. Nevertheless, as a mother whose daughter has converted, to Quranism, as claimed, the Tribunal accepts that she is a member of a PSG pursuant to s.5J(1)(a) of the Act.
In addition, Tribunal accepts that she is an elderly person who has limited economic resources and has no family remaining in Egypt, no property or home, and no income. As such the Tribunal accepts that as an elderly person with limited economic resources or opportunities that the applicant is a member of a PSG pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear

Section 5J of the Act states that for the purposes of application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
In Chan v MIEA[36] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[37]
[36] (1989) 169 CLR 379 at 396.
[37] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear as a question of fact. In this case based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if she returns to Egypt.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:^[38]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[38] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:[39]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[39] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if she is returned to Egypt by reason of [Ms C]’s conversion to Quranism or as a result of her son’s political activities. However, the Tribunal does accept that she has a well-founded fear of persecution on an objective basis if she is returned to Egypt by reason of her economic circumstances as an elderly single woman in Egypt.

Accepted Facts

Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant, the Tribunal accepts and finds that:
(a)The applicant was born on [date] in Cairo, Egypt.
(b)The applicant was the youngest child in her family, having [older] brothers, all of whom have now passed away.
(c)The applicant completed high school, having attended [named High School], but did not attend university or college.
(d) The applicant worked in Egypt as a public servant but stopped work approximately 10 years prior to her arriving in Australia.
(e) The applicant was married to [Mr D] in 1977 who passed away in 2009.
(f) The applicant has three children being two daughters, [Ms C] and [Ms A], and a son, [Mr B], all of whom live in Australia.

Refugee

Applicant’s daughter as a convert to Quranism

The applicant claims that her daughter [Ms C] had converted to Quranism in Egypt. As a result of a prolonged and serious conflict with her husband and his family, [Ms C] travelled to Australia with her children and applied for and was granted a Protection visa.[40]
[40] Op Cit @ [22]
By a decision dated [in] 2016 the Tribunal (differently constituted) found that [Ms C] was owed protection obligations pursuant to s.36(2)(a) of the Act.[41] The Tribunal accepted that [Ms C] had been interested in exploring the foundations of Islamic religion and thought, which led to her exploring Quranism and ultimately becoming a Quranist.
[41] AAT File [No], Decision Record dated [2016] @ [8]
Quranism is an Islamic movement which believes that Islamic law and guidance should only be based on the Quran. Quranists believe that God's message in the Quran is clear and complete and can be fully understood without referencing outside sources.[42] As such, it opposes the authority and authenticity of hadith literature.[43] This contrasts with the Sunni, Shia and Ibadi doctrines which consider hadiths essential for the Islamic faith.[44] Quranists suggest that the vast majority of hadith literature is false and that the Quran can be understood without referencing outside sources..
[42] Muhammad, A. "True Islam - Fully Detailed Scripture." The Thinking Muslim ‘Rejecting Hadiths: The Fitnah of the Quranists by Rameez Abid dated 28 August 2012; ;
[44] ibid
The DFAT report does not directly refer to Quranism in Egypt. However, the Tribunal notes that the DFAT Report dated 28 January 2014[45] provided information on the situation for Quranists in Egypt as follows:
Koranists
3.51 There is a very small number of Koranists in Egypt, thought to be less than 1000. Koranists in Egypt have no defining characteristics (i.e. their names, their dress, their jewellery) that ordinarily distinguish them from other Egyptians, and they do not live in a recognisable community.
3.52 Although Koranism is not considered a legitimate denomination of Islam in Egypt, Koranists identify themselves as Muslim, including on their national identity cards. During the Mubarak era there were a number of arrests of Koranists. DFAT is unaware of any Koranist being arrested on account of their faith since the July 2013 military intervention.
3.53 Due to widespread societal distrust of Koranism, the majority do not reveal their religious identity and on a day-to-day basis face no discrimination on account of their faith. If a Koranist’s religious identity becomes known, DFAT assesses a Koranist would face the same level of discrimination as Shias in Egypt. This could include employment insecurity (from private sector jobs) and other forms of societal discrimination. However, such discrimination would be heavily dependent on the education levels and socio-economic situation of their neighbours. In urban middle-class areas, Koranists would be unlikely to face significant harassment.
Violence
3.54 DFAT assesses that it would be unlikely that Koranists (even if their identity were known) would face violence in Egypt under ordinary circumstances. In rural or conservative areas of the country, the risk of violence would increase if a Koranist undertook activities that called attention to their differences with other Muslims. In middle class, urban areas, it is unlikely that Koranists would face violence in any circumstance. DFAT is not aware of any killings of Koranists.
[45] DFAT Country Report, Egypt dated 28 January 2014 @ p.9
The DFAT report[46] states that Religion is central to identity in Egypt. The country’s constitution states that Islam is the state religion and that the principles of Sharia are the primary source of legislation. While it does not deal specifically with a person’s conversion to Quranism, the DFAT Report notes that there is no statutory prohibition in Egypt on a person converting from one religion to another.[47] However, it is noted that courts and government officials generally interpret Sharia as prohibiting conversion from Islam. Accordingly, the authorities will from time to time refuse to recognise such conversions by failing to amend a convert’s national identity card to reflect their chosen faith. This can affect a person’s status, including their ability to marry or divorce, and the religious identity of their children. It is assessed by DFAT[48] that a person converting away from Islam faces moderate risk of official discrimination. However, there is a high risk that they will experience societal discrimination by being physically abused and rejected or ostracised by the community.[49]
[46] DFAT Report @ p.15.
[47] Ibid.
[48] Ibid.
[49] Ibid.
In its decision, the Tribunal noted[50] that [Ms C] had provided the Department with several documents and their translations which included an investigation report dated [date] December 2012 detailing complaints against her by three of her brothers-in-law. In addition, she provided an investigation report by [a government agency] dated [date] December 2012 in which she was interviewed, an order from the prosecutor dated [date] December 2012 requiring her to pay a surety, sending the documents to Al-Azhar, and requiring an investigation by the police. In addition, [Ms C] provided a referral [decree] to appear before court on [date] June 2013, charged with sedition and offences against religion. The Tribunal accepted that [Ms C]’s brothers-in-law had made a complaint against her of apostasy and defamation of religion to the police on[date] December 2012 and that she had been released on a surety of [amount] Egyptian pounds as claimed. The Tribunal accepted and found that in the event she was returned to Egypt there was a real chance [Ms C] would be arrested and convicted on blasphemy and declared an apostate as claimed.
[50] AAT File No: 1413440, Decision Record dated 9 September 2016 @ [8].

Based on the applicant’s evidence and the Tribunal decision dated [in] 2016, the Tribunal accepts that [Ms C] has converted to Quranism and experienced prolonged conflict with her husband’s family as claimed. However, there was no evidence that [Ms C] had experienced any harm by the Egyptian authorities. The available country information indicates that a person converting to another religion away for being a Sunni Muslim will experience only moderate official discrimination. In [Ms C]’s case, having converted to Quranism, she would remain a Muslim and as such there would be no need to amend her national identity card. As such it is likely that the authorities were not aware of her conversion. Therefore, in the absence of any evidence of [Ms C] having been harmed by the authorities and the fact that the applicant remains a Sunni Muslim, the Tribunal finds that that there is no real chance the applicant will be seriously harmed by the Egyptian authorities as a result of her daughters’ conversion to Quranism.
The applicant arrived in Australia in 2012. Her evidence was that she had not had any communication with [Ms C]’s husband’s family since the time they were married, in 2001. However, it was her evidence that her brother was approached by [Ms C]’s husband’s family to try to get him to convince [Ms C] to return to being a Sunni Muslim. In addition, it was the applicant’s evidence that when her son [Mr B] returned to Egypt in or about 2013, he was threatened by [Ms C]’s husband’s family due to [Ms C]’s conversion to Quranism. While the Tribunal has reservations about her claim that she will be approached by [Ms C]’s husband’s family upon her return to Egypt, the available country information indicates that there is a high risk that converts will experience societal discrimination including being physically abused and ostracised by the community. As such, the Tribal is prepared to accept that [Ms C]’s husband’s family would approach the applicant for the purposes of putting pressure on her to convince [Ms C] to revert back to be a Sunni Muslim and to return her children to Egypt.
However, despite accepting that [Ms C]’s husband’s family would approach the applicant upon her return to Egypt, based on the applicant’s own evidence, the Tribunal does not accept that any contact they have with her will constitute serious harm. The applicant’s evidence was that her brothers were approached by [Ms C]’s husband’s family to try and get them to put pressure on [Ms C] to revert to being a Sunni Muslim. There was no evidence that they were subjected to any serious harm by such approaches, including being abused or ostracised by the community. While the Tribunal accepts that being approached by [Ms C]’s husband’s family may be emotional and stressful for the applicant, based on the applicant’s own evidence, the Tribunal finds that it does not amount to serious harm. Therefore, while the Tribunal accepts there is a real chance, she will be approached by [Ms C]’s husband’s family, it does not accept that she will be seriously harmed if she is returned to Egypt. As such, it finds that there is no real chance that she will be seriously harmed by [Ms C]’s husband’s family if she is returned to Egypt by reason of her daughter having converted to Quranism as claimed.

Applicant’s son as an activist.

The applicant claimed that her son had been involved in anti-Egyptian government protests in Australia. She claimed that photos of him had been taken at the protests and posted on [social media]. The applicant indicated to the Tribunal that she would be able to provide a copy of the [social media] page, but has failed to do so. She claimed the people who oppose the government in Egypt will be jailed and therefore, as a result of her son’s antigovernment activities, her son has been backlisted in Egypt. The applicant was not able to provide the Tribunal with any details in relation to the protest. For example, she was not able to say when the protests occurred or the specific reason why the protest occurred. Nevertheless, she claims as a result of her son’s activities she will be harmed by the authorities if she is returned to Egypt.
Given the vague nature of the applicant’s evidence and the lack of details concerning her son’s involvement in a protest against the Egyptian government, the Tribunal has difficulty in accepting that her son was involved any such protest as claimed. In any event, even if the Tribunal were to accept the applicant’s evidence, the applicant was not able to provide any reason why she would be harmed by the authorities because of her son’s activities in Australia. There appears to be no risk that the Egyptian authorities will harm the applicant as a result of her son’s protests in Australia. As such, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if she is returned to Egypt by reason of her son’s involvement in a protest in Australia.

Applicant’s Economic Circumstances

The applicant is an elderly woman with limited financial resources. Her evidence was that upon the death of her remaining brother, the family home she lived in Cairo was sold and the proceeds were distributed amongst the remaining family members of her [brothers]. The applicant’s evidence was that when she was in Egypt she worked as a public servant but ceased work approximately 10 years prior to arriving in Australia (that is, in or about 2003). The applicant no longer works and currently resides with her daughter [Ms A] and is financially dependent on her. As such, the applicant claims that, as an elderly woman without a home, no qualifications, or the capacity to earn a living, if she is returned to Egypt, she will suffer serious harm. That is, she will suffer economic hardship to the extent that it would threaten her capacity to subsist, constituting serious harm.[51]
[51] Section 5J(d) of the Act.
The DFAT report assesses that the majority of Egyptian women regardless of their religion or socio-economic status face societal discrimination as a result of ‘long-standing traditional values and gender roles restricting their participation in the community and the workforce.’[52] It is reported[53] that women in Egypt are the most vulnerable to social risks and therefore most likely to fall into poverty. It is reported that poverty in Egypt is mostly seen in unmarried, divorced, widowed, and abandoned women.[54] The reason for this is that women only represent 29 percent of the workforce, with men being paid more. The result is that women have lower pensions upon which to retire. Finally, women face greater social risks such as being widowed, abandoned, or divorced. It is reported[55] that it is very difficult for widowed women to return to the workforce and that they generally become reliant on their family for financial support. Therefore, based on the available country information and considering the applicant’s age and lack of specific qualifications, the Tribunal accepts that the applicant would have extremely limited opportunities for finding employment in Egypt.
[52] DFAT Report @ p.31.
[53] SOCIAL SECURITY IN EGYPT AN ANALYSIS AND AGENDA FOR POLICY REFORM by Larkus Loewe working paper 2024; ww.die-gdi.de/uploads/media/2024.pdf.
[54] Ibid.
[55] Ibid.
The social security system in Egypt includes social insurance, health insurance, and social assistance mechanisms. The system was developed in the 1950s and 1960s and remains in place today without any major reforms.[56] The expansion of social welfare in Egypt during this time relied heavily on the growth in government employment and the extension of social protection benefits to public sector employees. It is reported, however, that the system proved to be unsustainable, leading to a sharp reduction in public employment in the 1990s.[57] The casualisation of the labour market and the contraction of social insurance coverage, combined with the failure of social assistance programs to access the poor, have brought into question Egypt’s ability to provide basic welfare to its citizens. [58]
[56] Gender and Work in the Mena Region Working Paper Series, Social protection in Egypt: A policy overview by Maia Sieverding and Irene Selwaness September 2012 Ibid.
[58] Ibid.
The country information reports that Egypt has an aging population, placing increasing strain on the country’s socio-economic system. As a result, it is reported that Egypt’s welfare system has failed to protect individuals from falling into poverty.[59] The weakness of Egypt’s welfare system has caused the majority of the aging population to be either fully or partially dependant on their family for support. [60] Approximately 63 percent of men in Egypt aged 65 years or older receive a retirement or social pension, while for women in the same age-class the share reaches only 41 percent. Due to their higher participation rate men are entitled to receive higher retirement pensions than women. While older women tend to have a greater need for public welfare resources are less likely to access the pension, and more likely to rely on their family for support.
[59] Ibid.
[60] Ibid.
It is reported[61] that more elderly Egyptians are living alone, causing more to live in poor conditions. There has been an increase in the number of nursing homes in Egypt over the last 20 years. There are approximately145 homes and 200 elderly care organisations. The living condition vary from cramped apartments to palatial suburban homes. However, its estimated that these homes only service about two (2) percent of the population. [62] As a result, care dependency has become a problem in Egypt, especially for lower- and middle-class members, due to economical restrictions and lifestyle changes. [63]
[61] Researchgate, ‘Old age and inequalities in Egypt. The role of intergenerational relationships and transfers within the family, June 2013; American Chamber of Commerce in Egypt, ‘Elderly Care On The Rise’ By Maryclaire Abowdwww.amcham.org.eg/publications/business-monthly/issues/115/July-2009/118/elderly-care-on-the-rise.
[63] PUB MED.GOV, Ageing, care dependency, and care for older people in Egypt: a review of the literature dated 14 September 2005 by Thomas Boggatz¹, Theo Dassen; hhtp://pubmed.ncbi.nlm.nih.gov/16083486/.

The applicant is an elderly woman with only limited financial resources, no home, limited skills, and no family support if she is returned to Egypt. The prospect of her obtaining employment in Egypt to the extent that she would be able to support herself is extremely unlikely and based on the country information, as an elderly widow her ability to access social welfare in Egypt is limited. While the Tribunal has found that any advances by [Ms C]’s husband’s family will not constitute serious harm, nevertheless it has found that there is a reasonable chance that they will approach her if she is returned to Egypt. Such advances are likely to add pressure and burden on the applicant in circumstances where there is a real chance that she will suffer economic hardship. Therefore, based on the country information and the applicant’s own evidence the Tribunal finds that there is a real chance that the applicant will suffer economic hardship to the extent that it she will not have the capacity to subsist. As such, the Tribunal finds that there is a real chance the applicant will suffer serious harm by reason of her failure to subsist if she is returned to Egypt.

CONCLUSION

The Tribunal finds that if the applicant is removed from Australia to Egypt, there is a real chance that the applicant will suffer serious harm by reason of her suffering economic hardship to the extent that she will not have the capacity to subsist.
Therefore, having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, because of being removed from Australia to Egypt, there is a real chance that the applicant will suffer serious harm as a result of her economic circumstances. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is a person in respect of whom Australia has Protection obligations under the Act.

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 s.36(2)(a) of the Act.

DECISION

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

Jason Pennell
Senior Member

ANNEXURE A

RELIGION[64]
[64] DFAT Report @ p.15
3.2 No official statistics exist in relation to the breakdown of Egypt’s religious population. While estimates vary, most observers agree that Sunni Muslims comprise approximately 90 per cent of the population, Coptic Christians make up between eight and ten per cent, and the remainder consists of small numbers of other religious minorities, including Shi’a Muslims, Sufi Muslims (officially considered Sunni) non- Coptic Christians, Baha’i, and Jews. The government officially recognises three religions: Islam, Christianity, and Judaism.
Personal Status Laws[65]
[65] DFAT Report @ p.15
3.3 Religion is central to identity in Egypt. Egypt’s constitution states that Islam is the state religion, and the principles of sharia are the primary source of legislation. Article 64 of the constitution states that ‘freedom of belief is absolute’. Religious institutions of the three recognised religions (Islam, Christianity and Judaism) are responsible for personal status issues such as marriage, divorce and inheritance. Muslim personal status laws derived from sharia are reflected in legislation. Family Courts apply this legislation to Muslim couples; Muslims married to Christians, and married couples who belong to different Christian denominations (see ‘Christians’). For Christians and Jews, the religious authorities themselves adopt personal status rules, based on relevant religious doctrine. These rules are considered equivalent to administrative decisions, andare subject to review in Egyptian courts. The Personal Status Laws are currently undergoing a review process, but it is unclear whether this will result in any significant change from the status quo.
3.4 Recent court rulings have allowed Egyptians belonging to unrecognised religions, such as Baha’i, or unrecognised Christian sects (see Christians) such as Jehovah’s Witnesses, to have a dash ( - ) recorded against the religion field in their identity documents. Members of these groups, however, may still face difficulties in relation to personal status issues due to the lack of a civil alternative.
3.5 Egypt is a socially conservative country, and very few couples live together outside of marriage in both urban and rural areas. The state administers marriages between Muslims in accordance with Muslim personal status laws. Christians and Jews must seek marriage under their respective religious institutions before obtaining a marriage contract from the state. All marriages must be registered with the Ministry of Justice, which issues official marriage certificates. According to sharia (as interpreted by Egyptian courts), a Muslim man can marry a non-Muslim woman without her having to convert to Islam. A Muslim woman, however, can only marry a non-Muslim man if he converts to Islam. Some Christian denominations will reportedly marry Christians from different denominations without requiring one party to convert, but most, including the Coptic Orthodox Church, will generally only marry couples from the same denomination.
3.6 There is no civil marriage in Egypt, and all religious authorities are strongly opposed to the concept. Civil marriages of Egyptians abroad are recognised in Egypt only when they comply with Egyptian personal status laws. For example, if a Muslim woman married a Christian man in a civil marriage in Australia, it would not be recognised in Egypt. Likewise, Egypt would not recognise a same-sex marriage.
Religious Conversions[66]
[66] DFAT Report @ p.16
3.7 There is no statutory prohibition in Egypt on converting from one religion to another. In order to convert to Christianity, authorities require documents from the receiving church, identity documents and fingerprints. Checks are also made on criminal history as conversion often requires a change in name. Converts to Islam will generally have their conversions recognised and their identity cards changed accordingly without difficulty or delay. However, courts and government officials have generally interpreted sharia as prohibiting conversion from Islam. Authorities have at times reportedly refused to recognise such conversions, including through failing to amend a convert’s national identity card (and corresponding record) to reflect their chosen faith. This has significant ramifications for personal status issues, such as marriage and divorce, and the state’s view of the religious identity of any children born to a convert. Egyptian children obtain a national identity card at age 16, with their religious identity matching that of their parents (their Muslim parent, in the case of a mixed marriage between a Muslim man and Christian woman).
3.8 A 2011 court ruling allowed Christians who converted to Islam and then back to Christianity (generally in order to more easily access divorce) to amend their identity cards to reflect their return to their original faith. DFAT understands, however, that only a small number of such individuals have been permitted to do so, and that several thousand others are still waiting to have their cards changed back.
3.9 Converts from Islam to other religions are not generally subject to officially sanctioned violence, detention or surveillance. However, they face significant societal discrimination in the form of rejection, ostracism and sometimes violence from their families or communities. Such discrimination is worse in poorer and rural areas, which tend to be more socially conservative. The level of discrimination is likely to be higher if the convert engages in proselytization.
3.10 DFAT is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam. Such reports have occasionally led to increased tensions and clashes between Christian and Muslim communities, particularly when the alleged abductions involve family members of Christian priests. However, there is little evidence to suggest that forced conversions occur as a regular phenomenon.
3.11 DFAT assesses that a person converting from Islam faces a moderate risk of official discrimination. They may experience difficulties in having their conversion officially recognised, including on national identity cards, which may affect their ability to access government or religious services. DFAT assesses that a person converting from Islam faces a high risk of societal discrimination in the form of rejection, ostracism and possible violence from their families and communities.

Blasphemy/Defamation of Religion[67]

[67] DFAT Report @ p.17

3.12 Article 98(f) of the Egyptian Criminal Code provides for prison sentences of up to five years and/or fines of up to EGP1000 ($AU145) for ‘exploiting and using religion in advocating and propagating extremist thoughts with the aim of instigating sedition and division or disdaining and contemplating any of the heavenly religions, or prejudicing national unity or social peace’. Articles 160 and 161 proscribe various acts connected with religion, including disturbing religious ceremonies, violating the sanctity of religious buildings or cemeteries, printing adulterated versions of holy books, or imitating religious ceremonies for the purpose of ridicule.

3.13 Courts of general jurisdiction (see ‘Judiciary’) hear defamation of religion cases. While the Misdemeanour Courts hear most cases, the Criminal Courts may have jurisdiction if the charge is serious enough to involve a potential term of imprisonment. It is common for cases to last over a year, and for proceedings to be postponed repeatedly. The Public Prosecution Office places charges, which may occur after a lawsuit is filed, a private citizen files a complaint, or the state itself files a case. A conviction under Article 98(f) can result in a prison sentence of up to five years, and/or a fine.
3.14 Before the 2011 Revolution, defamation of religion cases were rare. The number and frequency of charges rose considerably under the Morsi government, and this trend has continued under Sisi. A January 2015 decree permitted the government to ban any foreign publications deemed offensive to religion, and Article 98(f) has been used against an increasingly wide range of groups across the country, including atheists, Christians (including converts from Islam), and artists. The increased use of social media has reportedly been a contributing factor in the rise of such cases: more people have had visibility of potentially controversial material, and so the number of complaints has risen accordingly.
3.15 According to the US Commission on International Religious Freedom (USCIRF), there were 15 known ongoing cases and investigations under Article 98(f) in 2017, an increase from 2016. Many of the cases involved expression on social media. The majority of charges filed have been against Sunnis, including a cleric who was sentenced to five years’ imprisonment in February 2017 for questioning various interpretations of Koranic texts on Facebook. The majority of those sentenced to prison terms, however, have reportedly been non-Muslims.
3.16 DFAT understands that those accused of blasphemy rarely have an adequate defence counsel. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases.
Women[68]
[68] DFAT Report @ p.29
3.75 Article 11 of the Constitution commits the state to achieving equality between women and men, and to ensuring appropriate representation of women in national bodies. There are considerable legal protections for women in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. The government’s National Strategy for the Empowerment of Egyptian Women (2017 – 2030) sets a number of concrete targets for political, economic and social empowerment for 2030, including increasing the percentage of women in public posts from 5 per cent to 17 per cent; reducing the unemployment rate for women from 24 per cent to 16 per cent; and halving the maternal mortality rate (currently 33 women die from pregnancy related causes for every 100,000 live births, compared to 8.5 in Australia). The strategy also aims to eliminate sexual harassment and domestic violence entirely, and to improve Egypt’s ranking on the UN Gender Inequality Index to 88 of 159 selected countries from its 2017 position of 115.
3.76 Women participate in all areas of Egyptian society, including government, business and civil society. However, societal, cultural, legislative, and religious barriers continue to place considerable limits on that participation. The implementation of constitutional protections can be unpredictable, and frequently dependent on the individual discretion of police, prosecutors, or judges. Human rights organisations have told DFAT that some judges, particularly in rural areas, allow their religious or cultural view of women to influence their findings. This problem is exacerbated by the fact that the judiciary is almost entirely male – only 0.5 per cent of judges are women. The accountability of police is also an issue, both in terms of their capacity to enforce laws preventing violence and harassment of women and as perpetrators of such acts. DFAT understands that police have targeted some women living alone (which is a social taboo in Egypt) for arrest or extortion under Law 10/1961, which prohibits prostitution.
3.77 Religiously based Personal Status Laws tend to disadvantage both Christian and Muslim women (see Personal Status Laws). For example, while Muslim men can unilaterally divorce their wives without providing any justification, Muslim women must either forfeit their financial rights by accepting a ‘no-fault’ divorce, or fight a long and costly court battle to prove their husband harmed them. Christian women married to Christian men are only able to access divorce if their husband converts to another religion or is unfaithful, which results in many women being unable to leave abusive relationships. Women are entitled to inherit only half as much as their male relatives. Laws related to adultery are far more severe for women than men. Women have fewer custodial rights than men. If a divorced woman with children decides to remarry she loses custody of her children to the children’s father or his closest female kin, leading most divorced women to elect not to remarry. Abortion is criminalised in all cases. Women may not remove a child from Egypt without the specific permission of the father (see Exit and Entry Procedures).
3.78 There have been considerable improvements on women’s representation in parliament in recent years, achieved through a quota system: Law 46/2014 stipulated the presence of 56 women on party lists, as well as 14 women appointed directly by the President. Women make up 14.6 per cent of the current Parliament (compared to 2 per cent in 2012), there are eight women Ministers, a female National Security Advisor, and a woman Governor. The government has made progress in improving financial inclusion for women: formal account ownership among women more than tripled between 2011 and 2017, and the Central Bank is now collecting sex-disaggregated data. The government’s economic reform agenda, however, has had a disproportionate impact on women, who since 2014 have dropped out of the employment market in increasing numbers. The IMF-backed efforts to cut the public sector wage bill (see Economic Overview) has had a particularly impact, given the public sector provided the majority of formal employment for women. In-country sources have reported a considerable rise in women being forced into prostitution for economic reasons.
3.79 Female genital mutilation/cutting (FGM/C) is a strongly held traditional practice in Egypt. It is widely practiced in both Muslim and Christian communities, and strong social pressure is placed on young women and girls to undergo the procedure in order to get married. FGM/C has been illegal in Egypt since 2008 (Article 242 of the Criminal Code), although the law does not explicitly set out punishments for aiding or abetting the practice, nor addresses failure to report FGM/C, whether it is planned or has taken place. Egypt’s highest Muslim religious authorities have repeatedly declared that FGM/C has no basis in Islam. A comprehensive 2013 study by the United Nations International Children’s Emergency Fund (UNICEF) found that over 90 per cent of Egyptian women had been subjected to FGM/C, which had been conducted by a medical professional in around three-quarters of cases. In February 2016, UNICEF reported a noticeable reduction in the percentage of girls aged 15 – 19 years who had undergone the procedure, which may indicate that the practice is on the decline.
3.80 Despite the high rate of medicalised FGM/C in Egypt, no laws explicitly address medical malpractice and the performance of FGM/C by health professionals, whether in government or private hospitals, clinics or private homes. Prosecutions are rare and have generally been limited to cases where girls die during or after the procedure.
Violence against Women
3.81 Rape, sexual harassment, and other forms of sexual and gender-based violence are all strongly prevalent in Egypt. A 2017 survey by the Thomson Reuters Foundation found Cairo the world’s most dangerous megacity for women.
3.82 Article 267 of the Criminal Code makes rape a crime punishable by death. The legal definitions for rape and sexual assault are weak, however, and rape within marriage is not a crime. Women’s rights activists estimate that tens of thousands of incidents of rape occur annually, very few of which result in conviction. Human rights observers report that authorities generally treat allegations of rape and sexual assault as a ‘social nuisance’ rather than a crime to be prosecuted, and rarely make serious attempts to prosecute those responsible for sex crimes.
3.83 Sexual harassment is a frequent occurrence for women across the socio-economic spectrum. A 2013 UN Women study found 99.3 per cent of Egyptian women had experienced sexual harassment, while 91.5 per cent reported experiencing unwanted physical contact. The study found that most sexually assaulted women would not report the crime to the police or tell their families. Those who do make reports sometimes face retaliation from perpetrators or even their own families, who may blame them for provoking the assault or for bringing shame on the family. Sexual harassment was found to be particularly prevalent during mass street celebrations such as religious feasts, or political demonstrations. State officials and members of parliament have sometimes blamed victims of sexual violence because of their “revealing clothing”.
3.84 Decree 50/2014 criminalised sexual harassment for the first time, providing for prison sentences of up to five years, and parliament imposed higher penalties for sexual harassment in December 2017, including fines of up to 10,000 Egyptian pounds (about $750 AUD). There have been some instances in which authorities have successfully prosecuted perpetrators of sexual harassment: nine men received lengthy prison sentences in July 2014 for participating in mob sexual assaults, and a man received a five-year sentence in April 2015 for sexually harassing a woman on public transport in Cairo. However, such prosecutions and sentences remain rare. Authorities have instead taken action against individuals and groups who have spoken out on the issue. For example, in May 2018 authorities arrested an activist who had posted a video on Facebook which spoke about the prevalence of sexual harassment and criticised the government’s failure to protect women. In September, a court sentenced the activist to two years’ imprisonment for publishing false news, and fined her EGP10,000 (AUD795) for making public insults. The activist continues to face charges in a separate case of belonging to a terrorist organisation. Human rights observers report that several other women’s’ rights groups and activists also face criminal charges in relation to their activism, with a number of activists subject to travel bans (see Exit and Entry Procedures).
3.85 Domestic violence is prevalent and commonly accepted across religious communities and socio- economic levels: a 2017 UN Women survey of gender attitudes found that 90 per cent of Egyptian men and 71 per cent of women agreed with the statement that wives should tolerate violence to keep the family together. In-country sources report that domestic violence rates have risen in line with widespread frustration over economic austerity measures (see Economic Overview). Socio-economic factors can make it difficult for a woman to escape a violent relationship: attempting to do so in conservative or rural areas will usually result in communal and familial ostracism.
3.86 Very limited services are available for women seeking to escape domestic violence: only eight government-run shelters operate nationwide (in Cairo, Giza, Qalyubia, Alexandria, Beni Sueif, Fayoum and Minya). These shelters provide social, family, and psychological counselling, along with referrals to other service providers. According to human rights observers, the shelters focus primarily on reconciling women with their abusive husbands and tend to shelter women on a limited basis. The shelters are poorly resourced and advertised, and they apply rules and procedures that greatly limit their accessibility and utility to survivors of domestic violence. For example, unmarried women (including those perceived not to be virgins), those seeking divorce, and those with children are all precluded from accessing them. In-country sources report that attempts by civil society organisations to set up private shelters have been prevented by court orders or other legal proceedings against their activities.
3.87 There are no reliable statistics available regarding the incidence of killings and assaults motivated by ‘honour’ – these are not specifically addressed in the Criminal Code and are considered as any other crime. Several articles of the Criminal Code in effect condone the committing of such crimes, including Article 17, which provides for reduced sentences in light of mitigating circumstances; Article 60, which does the same for offences committed in good faith of a sharia right; and Article 237, which provides for reduced sentences when a husband surprises his wife in the act of adultery and kills her. Human rights observers report that the practice of honour killings is more common in rural areas, with some incidences officially categorised as suicides or accidents.
3.88 Underage girls, particularly those from rural areas, are vulnerable to early or forced marriage. The government’s official statistics agency reported in 2017 that 118,904 girls in Egypt were under 18 when they married, and 18,127 were under the age of 16. The Ministry of Health has reported that 500,000 are born every year to underage mothers. Some early marriages are temporary arrangements designed to mask child prostitution, known colloquially as ‘tourism’ or ‘summer’ marriages. These ‘marriages’ involve wealthy foreign men (generally tourists from the Gulf States) purchasing young girls for the purpose of sexual exploitation, with the transaction often facilitated by the girl’s family. The Ministry of Justice introduced measures in December 2015 to discourage such arrangements but refrained from eliminating the practice altogether.
3.89 DFAT assesses that the majority of Egyptian women, regardless or religion or socio-economic status, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and the workforce. DFAT assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence. Activists who criticise government failures in relation to gender violence are likely to face arrest and prosecution in relation to their activism (as outlined in Human Rights Defenders).

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

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

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.
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.
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.

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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

Asiannews.IT The reform of Islam and the Koranists, persecuted in Saudi Arabia by Kamel Abderrahmani dated 27 October 2018. asiannews.it/news-en/The-reform-of-Islam-and-the-Koranists,-persecuted-in-Saudi-Arabia-45322.html

Date	Details
[May] 2007- [July] 2007	Applicant travelled to Australia on a Tourist visa to visit her son, [Mr B], and his family.
[Sep] 2010- [March] 2011	Applicant travelled to Australia on a Tourist visa to visit for the birth of her son’s second child.
[May] 2012	The applicant arrived in Australia on a Tourist visa following the breakdown of her daughter’s marriage.
[February] 2013	The applicant requested the 8503 condition[4] on her tourist visa be waived.
[March] 2013	The waiver was approved
[April] 2013	The applicant became an unlawful noncitizen in Australia
29 January 2015	The applicant lodged an Application for a Protection visa