1801303 (Refugee)

1801303 (Refugee) [2022] AATA 2294 (25 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801303
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Peter Vlahos
DATE:25 May 2022
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 25^th May 2022 at 12.00PM.
CATCHWORDS
REFUGEE – protection visa – Egypt – member of particular social group – abused women –control and physical and mental abuse by strict Muslim brother and other family members – general conservatism, fundamentalism and violence – imputed religious and political opinion – liberal and questioning views and lifestyle, including interest in Christianity – residence and work and non-marital relationship in third country – brief returns for study and sister’s wedding – mental health and treatment – economic hardship – country information – legal rights limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J(1), (5)(d), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Ahmadi v MIMA [2001] FCA 1070
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Morato v MILGEA (1992) 39 FCR 401 at 416
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 1119
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 24 February 2015. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant submitted to the Tribunal on 18 January 2018 an application requesting the Tribunal consider the Department’s refusal to grant the applicant a Protection visa.
The applicant appeared before the Tribunal on 4 May 2022 to give evidence and present arguments.
The applicant was represented in relation to the review by her [solicitor]. The representative attended the Tribunal hearing.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of origin and assessment for Protection claims
Based on a copy of the applicant’s passport, which was 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 Arab Republic of Egypt and has had her claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
Therefore, on the basis of the above evidence before the Tribunal, the Tribunal further accepts and finds the applicant’s identity as an Egyptian national as claimed.
The applicant’s Department file
The Tribunal has before it (in these proceedings) the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant also provided a copy of the delegate’s decision record to the Tribunal with her submitted application for review.
Background – the applicant’s migration/visa history
On 8 June 2011 the applicant applied for a Sponsored Family Visitor visa. On 24 June 2011 the Department refused the applicant’s Sponsored Family Visitor (UL-679) visa, on the grounds that the applicant’s sponsor was ineligible. On 19 September 2012 the applicant applied for a Sponsored Family Visitor visa. On 10 October 2012 the applicant was granted a Sponsored Family Visitor (UL- 679) visa, which was to be in effect until 22 November 2012. [In] October 2012 the applicant arrived in Australia. [In] November 2012 the applicant departed Australia. On 29 October 2013 the applicant applied for Sponsored Family Visitor visa. On 12 December 2012 the applicant was granted a Sponsored Family Visitor (FA-600) visa, in effect to 20 February 2014. [In] January 2013 the applicant arrived in Australia and [in] February 2013 the applicant departed Australia. On 4 December 2014 the applicant applied for a Sponsored Family Visitor visa and on 16 December 2014 the applicant was granted a Sponsored Family Visitor (FA-600) visitor visa which remained in effect to 1 March 2015. [In] January 2015 the applicant arrived in Australia and on 24 February 2015 the applicant applied for a Protection (XA-866) visa which was refused.
EVIDENCE AT THE HEARING
Background – Personal details of the Applicant
The applicant is a citizen of Egypt. She is [Age] years of age and is not married. She has family still living in Egypt which consist of her elderly mother a younger sister and a brother who is married and with a family of his own, but the applicant has no contact with her brother. The applicant’s father passed away in 2005. The applicant is currently working – as [an occupation] – in family violence with [Employer 1]. Also, the applicant is living on her own in rented accommodation.
The Applicant’s claims for Protection
The Tribunal noted that the applicant made the following written claims as part of her Application for Protection visa which was submitted to the Department and later rejected and the subject of this review:[1]
[1]see, Department of Home Affairs File no. [Number]
§The applicant claims that she is applying for protection on the grounds of membership of a particular social group (abused women) and implied religious opinion. She fears significant harm, namely torture or cruel inhuman treatment or punishment or degrading treatment or punishment.
§The applicant claims that she was born a Sunni Muslim in Egypt and is not a committed member of her faith. She fled to [Country 1] in 2008. She has held a working visa in association with her employment as [an Occupation]. Her employment is now terminated. She no longer has the legal right to return to [Country 1]. Her mother and brother continue to reside in Cairo. She has a younger sister [who] recently fled to [Country 1].
§Her brother [is] the patriarch of the family. Her brother is responsible for many aspects of her life. Her elder sister was allowed to marry only with his approval. He also dictates her behaviour. Her brother is a strict Muslim who abides by strict traditions. He selected husbands for her and her sister, and they both rejected arranged marriages. Her brother is an extremely violent man who physically and mentally abused them. He often violently bashed them if they questioned his authority.
§In May 2008, after violent confrontations with her brother regarding the issue of arranged marriage, she fled to [Country 1]. Her actions enraged her brother who declared that she had brought enormous shame upon the family by leaving the family home. In Egyptian culture it is considered unacceptable for a single girl to leave home and travel on her own to a foreign country. Prior to Egypt she had obtained employment in [Country 1] through the assistance of friend who had earlier travelled and employment there.
§The applicant-maintained contact with her mother and younger sister.
§She returned to Egypt in January 2010 to enrol for her university exams. In July 2010 she returned for her exams. In November 2011 she returned to Egypt to complete her course requirements. She had no contact with her mother and brother during these three visits.
§The applicant’s younger sister joined her in [Country 1] in early 2014. Her mother and brother blamed her for her sister’s behaviour, and vowed revenge on both of them.
§The Egyptian authorities will not protect her because they do not intervene in family or religious matters. The applicant cannot relocate because her brother can track her down and it is not acceptable for a single girl to live alone in Egypt. She will be harmed by radical Islamic fundamentalists who find her lifestyle and appearance offensive.
§The applicant claims that she is opposed to Islamic fundamentalism. She considers herself to be a liberated woman. The applicant has been working as [an Occupation] in [Country 1] dealing on a daily basis with cases involving abused women. In Egypt violence against women is a major problem.
§Egypt remains a patriarchal society with women’s rights are degraded by Islamic fundamentalism. The authorities do not take seriously the issue of violence in the past because she held a [Country 1] visa.
Additional claims presented at the Department’s PV Interview on 30 June 2017
§During the PV interview the applicant claimed that she has a record with the security authorities in Egypt. The applicant claims that this record was created when she was [age] years old. The applicant claimed that she went to a church and was asking the priest questions about the Christian religion. The applicant had discussed these issues with her teacher at school and had asked about the differences in the religions. After two days her parents received a notice from the authorities saying they were requesting her to go for an interview. The applicant claims that she was interviewed for two hours. The applicant claims that when she returned to Egypt in 2011, she was asked a lot of questions at the Airport. The applicant was questioned (she claimed) for two hours before she was allowed to leave the airport.
The applicant told the Tribunal that she has had a difficult relationship with her mother and brother from her younger years. The applicant’s relationship with her late father – she described it as being a “…fantastic relationship…” but for most of time the applicant’s father was away – in [another country] “on business”. The applicant further reflected on her mother’s relationship with her, and she described the ‘daughter/mother relationship’ as one that was “…upside down relationship”.
The Tribunal was told that the applicant had very little or nothing to do with brother. The applicant described her brother “very religious” and after her father’s death, her brother assumed the position of the family’s ‘patriarch’. According to the applicant, the position of her brother as ‘patriarch’ caused him to be responsible for all matters concerning the applicant and the family. This position assumed by the applicant’s brother, the applicant described as creating great issues in her life and in her relationship with her family.
The Tribunal was told that the applicant had complete her studies (while in Egypt) in [Subject] and with a specialisation in dealing with ‘[Specified people]’. Her studies had a duration of five (5) years and after passing her examinations she received her bachelor’s [degree], in [Subject].
As soon as the applicant completed her education at university, and because of the difficult relations with her family, she told the Tribunal, that she ‘sought work in [Country 1]’ and when that work was found, she remained working in [Country 1] for approximately ‘eight years’.
The applicant confirmed for the Tribunal her visa history and told the Tribunal that she endeavoured to come to Australia to be wither now married sister. The relationship with her sister who lives in Australia was described to the Tribunal by the applicant, as ‘close’.
Applicant’s problems with her family members
The Tribunal asked the applicant to describe her relationship with her family in Egypt and why that relationship was not close. The applicant told the Tribunal that her brother was very dominant in the family. The applicant conceded the point that this dominance was due to the fact that Egyptian culture generally accepted the complete dominance of the ‘male’ over all family members. The applicant said this cultural belief caused issues for her and her sisters and this concerned her brother only having assumed for himself the family ‘patriarch’ position after the death of her father.
The applicant described her brother as a devout Sunni Muslim. The applicant told the Tribunal that she never agreed with her brother’s beliefs or views on life in general and especially his attitudes on women. The applicant said that her brother considered that women should be ‘married’ and to have children. The applicant told the Tribunal that ‘everything she did not right’ and was considered with ‘suspicion’.
The Tribunal was told that on many occasions the applicant and her brother disagreed on matters and the disagreement would result in ‘violence’ being committed against her. On one occasion during such an argument (possibly, in 2009) the applicant was ‘by force’ placed in her room (locked up) for ‘a whole day.’ The applicant went on to tell the Tribunal that on this occasion and on previous occasions, her brother and at times her own mother, demanded of her to consider marriage and having a family. The applicant told the Tribunal that she ‘never agreed with her brother’ and did not care what ‘her mother’ said. The Tribunal was told by the applicant, that she wished to live her life as she wished, without anyone telling her what to do or when and who, to marry.
The Tribunal was told by the applicant that while she was in [Country 1] working or when in Egypt, when she came to Egypt, she had “…very little to do with her family…” The Tribunal asked the applicant if she had a strained relationship with brother and to an extent her mother, why did she make an effort to attend her sister’s wedding in 2010? The applicant explained to the Tribunal that on that occasion, she made (despite her hesitations) made an exception at least for the ‘public’ face of the ‘family’ but she told the Tribunal, she had “no contact with her brother.” According to the applicant, she came to the reception and when it had ended, she “immediately left …” without exchanging pleasantries.
The Tribunal was told that the applicant made a serious concession for her mother in attending the wedding of her sister in 2010. If, the gathering was anything else, the applicant would not have bothered.
The Tribunal was also told that during the period 2005 to 2008, the relationship with her brother was such that she had decided to live away from home in a shared accommodation with other friends – something the applicant’s brother could not accept and considered it an act of ‘dishonour’ to the family’s name.
The Tribunal asked the applicant to describe ‘her life’ in [Country 1] when she was working there as [Occupation]? The applicant said that her life – in [Country 1] was free of from the constraints of having to account for everything she did to her brother or even to her mother. In [Country 1], the applicant told the Tribunal, she “had more freedom…” Moreover, her work provided her with many contacts and her social activities were more in number than what she was able to experience in Egypt.
Applicant’s liberal views
The applicant told the Tribunal that she considered her opinions very “…liberal…” The applicant was asked to explain why she considered her opinions ‘liberal…’? The applicant said that by the word ‘liberal’ she meant that her life was ‘free from any interference’ from anyone – be it, family members liker her brother or the general restraints of being a part of a wider Sunni Muslim community in Egypt. The applicant went on to also tell the Tribunal that throughout her life she considered herself “…different…” and that she never liked to “be forced into doing something or being someone, she was not…” This in all was her character as a female – singled minded, independent and with a liberal attitude to life matters and towards religion. The applicant told the Tribunal she never took the teachings of the Sunni Muslim religion seriously even as a young girl. A total contrast to her brother.
The applicant was also asked by the Tribunal to explain her relationships with her family members while in Australia. The Tribunal said that when she came to Australia, she stayed with her then married sister and her husband, her brother-in-law.
The Tribunal was told that her sister’s (now) former husband ([Mr D]) had met on a dating website. The applicant’s sister was in Egypt and her former brother-in-law in Australia (and an Australian citizen). Her brother-in-law sponsored her sister. The applicant said after her sister had married, she came to Australia and stayed with them.[2] The applicant said that it was during these time (while staying at her sister’s home) ‘…her troubles with [Mr D] started…’ The applicant explained that her brother-in-law started to ‘blame her’ for the ‘deteriorating relationship’ with ‘her sister’. The brother-in-law, according to the applicant believed that the applicant was a ‘bad influence on his wife…’ (the applicant’s sister). The applicant was accused, she told the Tribunal, of encouraging her in being ‘…not religious, corrupt (in thoughts) and immoral…’
[2] see, the applicant’s statement

The applicant, the Tribunal was told, believed that her brother-in-law was a ‘religious fanatic’ because his family’s origins are (according to the applicant) from a ‘religious [family].’ The applicant told the Tribunal that while living with her sister and brother-in-law, she ‘…had to wear the veil in their presence’ even though, the applicant did ‘…not like the veil at all…’ The applicant recalled that there was one occasion when she ‘got into an argument’ with the brother-in-law in the presence of the entire family. Also, while living with her sister and brother-in-law, the applicant told the Tribunal that she was not permitted (by the brother-in-law) to speak or socialise with the ‘male members of the family’ and the brother-in-law continuously ‘picked on’ the applicant identifying her ‘dress’ as not being the proper attire for a woman. Indeed, when those opinions were expressed to the applicant, she recollected that the comments ignited a bitter argument and dissension.
The applicant told the Tribunal, for example, on ‘one occasion in September 2015’ the applicant’s brother-in-law, ‘started to abuse the applicant’ verbally which eventually led to the applicant being ‘physically assaulted.’ The applicant said that the time she was wearing a hijab which ‘was removed’ by force. The applicant said she told her brother-in-law, that she did not believe in the hajib and that comment resulted in further agitation which did not result in an actual physical assault because the brother-in-law’s father and brother who witness this dispute – intervened.
The applicant told the Tribunal that she could not report this incident to the police because she feared causing ‘more problems for [her] sister and children.’ The applicant after this incident, told the Tribunal that left her sister’s home, made enquires for emergency accommodation with ‘[Emergency accommodation provider]’ and found a ‘safe location’ to live. The applicant told the Tribunal that she is still traumatised by her experience with her brother-in-law who has ‘continued to make threats’ against her. The applicant also told the Tribunal that in 2018, her sister ‘divorced’ for husband and filed intervention order against him.
The applicant’s interest in the Christian religion
The applicant recalled that when she was about [age] years old, she had developed a curiosity about Christianity and she wanted to ‘know the differences between Christianity and her religion, Islam’ (“the religion I was born into”). In order to find out more about Christianity, the applicant said that she ‘visited a church in [Town]’ with ‘a friend’ who was a Christian. The applicant recalled that she ‘spoke to the Coptic Bishop’ and asked, ‘some questions.’ The applicant believed that who actions in seeking information about another religion was not ‘wrong’. Later, following her visit to the Church, the applicant asked her teacher (she recollected) ‘about the difference between Islam and Christianity.’ The applicant remembered that in her discussions at the church, she was told ‘about the equality between men and women in Christianity.’ This ‘intrigued’ the applicant, the Tribunal was told, and she had formed her own opinion, that ‘it was not fair that women were treated differently under Islamic law.’ The applicant explained that she ‘was very curious and wanted to reach my own conclusion as to why women is Islam are entitled to less in a [will] than a male member of a family.’ According to the applicant, the next day, the Tribunal was told, her teacher ‘asked why I was asking these questions.’ The applicant told the Tribunal that she told her teacher that ‘I visited the church and the Bishop educated me on some of the questions that I had.’ What followed, according to the applicant, ‘two days later, my family received a notice that I had to go for an interview by the security forces.’ This concerned the applicant but attended the interview which according to the applicant, she attended with her mother and uncle. The Tribunal was told that the interview persisted for ‘two hours’.
The applicant said that this incident was soon made known within her village at the time and as a result she and her family were ostracised by her local community. Moreover, according to the applicant, when she ‘visited Egypt in 2011’ she ‘was stopped by the security people at the airport’ and was ‘asked many questions about ‘her background.’
Issues concerning the Applicant’s return to Egypt
The applicant said she could not return to her ‘home village’. The applicant described it, as a ‘rural conservative area’ where she would ‘face real danger’ not just from her brother but also others with her village’s community. The applicant said, that, previously as a ‘student’ she had lived at a ‘share house with other girls’ in the years ‘2005-2008’ when she was at university. The applicant told the Tribunal that the ‘attitude of the society as a whole has changed greatly [in Egypt] in the last 15 years…’ Egypt, in the applicant’s opinion, has experienced ‘a lot of unrest…’ The applicant said, that ‘there has been a lot more conservative and Islamic fundamentalism’ and this was much more prevalent ‘in Cairo’.
The applicant said that ‘single women [like her] are constantly at risk of violence from religious fanatics with no protection’ from the authorities. The Tribunal was told that ‘violence against women [had] increased’ in Egypt, in recent times.
The applicant said that ‘even when [she] lived in Cairo, [she] faced a lot of pressure from persons in society to behave in a certain way.’ The applicant went on to say, that persons unknown would ask and ‘quiz any couple walking alongside each other about their relationship to each other.’
The applicant told the Tribunal she did ‘not want to be forced to wear the hijab…’ The applicant believed that such compulsion to do so, was ‘oppressive and sexist…’ The applicant was adamant that if she was to return to Egypt and considered living ‘anywhere’ [she] would still be at risk of being found by her brother, ‘who had vowed to harm’ [her]. Her brother had made threats against the applicant to her sister and these threats concerned her.
The applicant said that ‘in Egypt’, if she was ‘physically abused by [her] brother or another male, [she] could not report [the abuse, or assault] to the authorities. Also, in the applicant’s opinion, there ‘is a lot of stigma and shame in reporting [one’s own] family to the authorities’ and furthermore, ‘in Egypt’, the ‘authorities usually leave such matters to be resolved in the family.’ Hence, in the applicant’s opinion, that is ‘why there is so much violence against women and [every year] there are so [many] honour killings.’
The applicant said that the ‘difficulties faced by a female in Egypt are immense.’ The applicant believed that a ‘female’s human rights are abused and violated on a regular basis…’
Protection of the Applicant by the authorities
In Egypt, the applicant told the Tribunal, the ‘problem is not so much the Egyptian authorities’ but, according to the applicant, the ‘bigger problem is the society as a whole which is generally [quite] conservative.’ The applicant told the Tribunal, that in Egypt, there ‘is a lot of violence against women’ and ‘they are not protected by the authorities.’
The applicant explained to the Tribunal that her ‘ID card (Identity) display whether a person is single or married’. Hence, according to the applicant, ‘if a girl is accompanied with a boy, the police have the right to stop them and [to] check whether they are single or married.’ The applicant emphasised her remarks by stating that ‘if they [the persons stopped by the police] are [found] to not be related or not from the same family, they [persons stopped to have their IDs checked] can get into a lot of trouble.’
The applicant said also, that ‘on paper Egyptian law protects me – as a woman.’ However, according to the applicant, ‘in reality it is quite different.’ In the applicant’s view, ‘society thinks differently and has its own set of rules based on religious and cultural norms’. The applicant explained referring to her ‘brother’ namely, that he ‘has committed violence against me on many occasions …and will do so again, if given the opportunity.’
Why the Applicant cannot return to Egypt?
The applicant told the Tribunal that she cannot return to Egypt because she ‘will be at risk of violence from my family, in particular from my brother.’ The applicant also feared being ‘potentially’ ‘at risk’ from ‘Islamic fanatics who have gained a lot of power and influence since the time I lived in Egypt.’
The applicant said that ‘she lived in [Country 1] for 7 years without having concerns.’ While in [Country 1], the applicant said, she ‘lived with my boyfriend’ and ‘enjoyed my freedoms like any other human being should.’ Similarly, while in Australia, the applicant said, ‘apart from the first few months that I lived with my sister under oppressive rules of my brother-in-law, I lived freely and have embraced my freedoms in Australia.’
Furthermore, the applicant said that ‘my mental health has significantly deteriorated due to the circumstances that I have found myself in.’ She went on to state, ‘I have been getting treatment from my psychiatrist and I have been on various medications to deal with my depression, anxiety and ADHD.’ The applicant said that the fear of returning to Egypt where she could be exposed to family violence and societal ridicule heightens her health issues.
What is the Applicant currently doing while in Australia?
Finally, the applicant said that a ‘[Occupation] in Australia for different organisations such as [Employer 2], I am very passionate about my fight for women’s rights. Especially, Muslim women who I know go through many challenges and their voices are often not heard.’ The applicant went on to say, ‘I am also proud to have worked for [Employer 1] since September 2020. My original contract with them was for 6 months only but the management team saw my passion and drive in this area and decided to employ me on a on-going basis.’ The applicant described her current employer as ‘an organisation that provides discrete services to Muslim women who experience family violence and other issues that [they] cannot openly discuss within their community.’ As a ‘[Occupation]’ the applicant said ‘I provide Muslim women information about their rights in Australia and provide support systems for them without exposing them to further risk of harm.’
Final comments by the Applicant
The applicant said that ‘my brother continues to make threats against me and I know he will act on these threats if I ever return to [Egypt].’ The applicant ‘could not think about the prospects of being forced into an arranged marriage or be imprisoned in a room by my brother…’ and ‘I cannot undergo virginity tests before being married off to someone, which in itself could cause me serious harm. I cannot go back to being oppressed again and I cannot be forced to be living in hiding…’
COUNTRY INFORMATION – EGYPT – THE RULE OF LAW AND WOMEN’S RIGHTS GENERALLY IN A PREDOMINANT MUSLIM COUNTRY
According to EUROMED RIGHTS[3] Since taking power as Egypt’s President in 2014, Abdel Fattah al-Sisi has declared his support for Egyptian women on multiple occasions, emphasising the importance of equal rights and women’s empowerment for Egypt’s development. Al-Sisi’s feminist stance soon proved to be more of a strategy to harness women’s support against the Muslim Brotherhood than a genuine commitment to gender equality. The regime’s narrative blatantly contradicts its actual poor record on women’s rights, as documented by feminist organisations and international mechanisms.
[3]
The new draft of the personal status law is the latest example of the government’s contempt for women’s rights. It deprives women of their legal status to conclude a marriage contract or claim guardianship of their children. The draft law caused an uproar in the country, and on 13 March, the Women and Memory Forum launched a campaign to denounce the bill using the hashtag #guardianship_myright.
The Egyptian government does not tolerate any form of feminism but its own. The National Council for Women (NCW) is the official government entity tasked with empowering women and ending discrimination. However, the NCW only offers very limited support for feminist organisations that are facing numerous obstacles. Women’s rights organisations, such as Nazra for Feminist Studies and the Center for Egyptian Women’s Legal Assistance (CEWLA) had their assets frozen and their leaders banned from travelling. This is a tactic the government uses to prevent them from speaking up about the situation of women’s rights in Egypt. Nazra’s director, Mozn Hassan, recently described the hardship of the feminist struggle in Egypt in EuroMed Rights’ podcast.
Women rights’ defenders face abject hostility in al-Sisi’s Egypt. Egyptian women frequently use social media to denounce gender-based violence and end up being silenced by the government. Human rights defender Amal Fathy was arrested in June 2018 for posting a video on Facebook criticising the authorities’ inaction in the fight against sexual harassment. In 2020, three TikTok influencers were sentenced to jail for violating “family values” and “publishing sexually provocative videos” after having sung and danced on the network. Lastly, in February 2021, female journalist and human rights defender Solafa Magdy reported harassment and assault by police officers while imprisoned. Her claims were not investigated. In short, observers should not be fooled: the Egyptian state’s feminist discourse is merely a diplomatic tool to attract international support.
In an article published by the Egyptian Centre for Women’s Rights said that,[4]
[4]
Violence against women in Egypt can be described along the broad categories: violence committed by institutions of the state, domestic violence, female genital mutilation (FGM), and the structural violence that deprives women of equal participation and a chance to change the conditions that perpetuate the other forms of violence.
Violence Committed by Institutions of the State
Although laws prohibiting violence exist, not only is there a problem of enforcement, but there has also been a disturbing trend of deliberate violations by agents of the state. Some Egyptian police deliberately use women as pawns in their actions against male relatives suspected of crimes. One such case occurred after the October 2004 terrorist attack on the Red Sea Coast when police and state security agents arrested hundreds of people living in nearby towns. For those they could not find, they systematically subjected their female relatives to arrests, sexual and physical abuse, torture, harassment and public humiliation. Another, more high-profile occurrence was the physical and sexual abuse of women perpetrated by or without interference from security officials during the May 25, 2005 referendum vote. This shows that not only do authorities routinely fail to enforce legal protections against violence for women, including FGM, but they also perpetrate it themselves in a systematic fashion. ECWR sees these violations as a consequence of lack of awareness of laws, concepts of human rights and authorities' role in protecting women, as well as a serious lack of oversight.
To combat this, ECWR joined with the New Woman Research Center and Arab Alliance for Women in founding the Women's Forum for Change, a coalition of NGOs campaigning against violence carried out by government agents, such as the police and state security. We have written and distributed several press releases and plan to launch a domestic and international campaign on all levels to improve awareness, enforcement and oversight.
Our May 9th, 2005 conference entitled, "Stop Violence Against Women" focused specifically on violence committed by the state. Specialists and 90 participants including journalists, representatives from NGOs and researchers attended to discuss legal and social trends regarding violence against women, the psychology of the perpetrators and the effects of violence on victims, the media's role in confronting these abuses and the role of NGOs in fighting abuses of human rights, especially women's. Two case studies were presented on abuse and torture by police in which the police used inhumane methods and collective punishment against the entire family.
The conference resulted in the following recommendations:
§Accurate information and statistics on violence against women at all levels should be public
·Discrimination against women in any law should be removed, since this contributes to the occurrence of violence against women
·Procedures and laws protecting women should be encouraged and loopholes allowing violence and escape from punishment should be closed.
·Protection of victims of rape and punishment of rapists should be encouraged
·A unified strategy to confront social, organizational and individual violence should be employed
·All laws preventing freedom, such as the emergency law, should be eliminated
·Women's human rights should be discussed in international organizations, especially research and media organizations, in order to find culturally appropriate solutions to ending violence
·The contact information of organizations working on human rights should be published and their goals explained and made available to all women
·NGOs should cooperate with journalists to address issues of violence and mobilize public opinion
·Fighting all forms of discrimination against women is the only way to stop violence
·Civil society and all NGOs, especially women's organizations, must make a concerted effort to confront all forms of violence against women, especially organizational violence perpetrated by authorities who are supposed to protect the safety of citizens
Domestic Violence
ECWR has learned from our work with women that despite the existence of laws protecting women from violence, these laws are often not well known either by citizens or authorities, contributing to a lack of reporting of violations, a lack of enforcement or lenient sentencing for those convicted. Some cultural values that imply that violence against women is the prerogative of husbands or fathers contribute to this problem, as does the accepting portrayal of violence against women in the media.
Another factor preventing women from reporting violence is a general fear of engaging with the police, the legal system and the government. Also, current Egyptian media treats violence against women as acceptable and legitimate.
This has a strong effect on millions of Egyptians, men and women alike, and contributes to cultural barriers that seriously impede actions aimed at reducing the incidence of violence against women, legislation and enforcement. Raising journalists' awareness about the issue of violence, women's and human rights and their role and responsibilities in stopping it, is critical to changing the societal perspective on violence that will either facilitate or inhibit programs to eliminate it.
Although there is a huge amount of work left to be done, ECWR's Legal Empowerment and Aid project has been successful in raising women's awareness of their rights, convincing them to report violations and bring their cases to court, training them to do this independently in the future and to help other women, and training community NGOs to do this work as well.
We are also planning a wide-scale public awareness campaign including continued trainings and conferences as well as establishing a hotline, materials on the issue of violence, publicity materials advertising the hotline, and a special outreach to the media about their vital role in bringing their power to influence cultural change to ending violence.
Structural Violence and Barriers to Women's Political Participation
Structural violence in the form of discriminatory laws and enforcement practices continue to be a problem in Egypt, despite a constitutional guarantee of equality. Perpetuating this condition, women have little access to or influence on the political sphere. Extremely low representation of women and their interests leads to a lack of change in discriminatory legislation and new laws that are against the interests of women. ECWR is focusing a significant portion of our recent work on improving women's unequal access to political participation with the goal of increasing their influence over policymaking and thus securing their interests in the public sphere.
The activities that are part of our Women in Democratic Transition project, Legal Reform for Women and Women in the Professional Syndicates are aimed at ensuring that women have a voice in the democratic reform process that is moving quickly in Egypt. We train women to be informed, independent voters and also train women candidates in leadership skills and running a successful campaign. Public awareness, media outreach, gender sensitive election monitoring, outreach to political parties and professional syndicates and advocacy are our main foci.

Further, in an article published by Human Rights Watch[5], 17 August 2020, ‘Egypt: Spate of ‘Morality’ Prosecutions of women’ reported that the Egyptian authorities have since late April 2020 carried out an abusive campaign targeting female social media influencers on charges that violate their rights to privacy, freedom of expression, and non-discrimination.
[5]
The authorities (according to HRW) have arrested 15 persons including a 17-year-old girl after she posted a video about being beaten and raped, on vague charges such as violating “public morals” and “undermining family values.” According to Human Rights Watch, three of those arrested are men accused of aiding two women. Many of the women were arrested based on what the authorities said were “indecent” videos on social media applications, particularly the TikTok app. Yet the majority of the videos and photos, the women appeared fully dressed, at times singing and dancing. Those prosecuted have large followings on social media in the hundreds of thousands or millions.
“Arresting women and girls on very vague grounds simply for posting videos and photos of themselves on social media sites is discriminatory and directly violates their right to free expression” said Rothna Begum, senior women’s rights researcher at Human Rights Watch. “Policing women’s peaceful conduct online smacks of a new effort to control women’s use of public spaces.” Courts in Egypt, HRW reports have already sentenced 2 of the women and the 3 men to 2 years in prison and 2 more women in separate incidents to 3 years. The remaining 7 women and 1 girl face ongoing prosecutions. The Interior Ministry’s Morality Police have been involved in several cases. HRW stated that the first arrest, on April 21, was of Hanin Hossam, 20, a university student and social media celebrity with hundreds of thousands of followers on TikTok and Instagram. The prosecution’s main evidence against her was a video she posted on TikTok, which HRW viewed, inviting her women followers to use another video-sharing platform, Likee, telling them they can earn money by making live videos for Likee that get more viewers.
Other arrests followed a May 2 statement by the Office of the Prosecutor General that said, “forces of evil” were abusing the “new virtual electronic space” to “destroy our society, demolish its values and principles and steal its innocence.” Prosecutors on June 11 referred Hossam for a criminal trial before Cairo’s Economic Court, which oversees cybercrimes, media reports said. The prosecution reportedly charged Hossam with “undermining family values and principles.” In the same case, the authorities charged another woman, Mawadda al-Adham, 22, arrested on May 14, as well as three men they said assisted al-Adham and Hossam. The authorities also charged al-Adham with “undermining family values and principles” by publishing “indecent” videos and creating and managing websites for that purpose. All were sent to pre-trial detention.
On July 27, Cairo’s Economic Court convicted al-Adham and Hossam, sentenced them to 2 years in jail, and fined them 300,000.00 Egyptian pounds(EGP) (almost US$19,000.00) each. Defence lawyers appealed the verdict. The court convicted two of the men for assisting Hossam. The charges and sentences are based on the 2018 cybercrime law, several provisions of which mandate up to five-year prison sentences and/or large fines for online content deemed to violate undefined terms such as “family values” or “public morals”. The authorities arrested Aya, 17, known on social media as “Menna Abdelaziz”, on May 28. She had posted a video on May 22 in which her face appeared bruised. In it, she says she was beaten by a group of young men and women, and that the men also raped her, filmed the acts, and then blackmailed her with the footage. On May 30, the Office of the Prosecutor General issued a statement saying prosecutors ordered her detained pending investigations as a victim of sexual assault but also as a suspect in morality related offenses for her videos generally.
On June 7, the prosecution moved Aya to a government-run women’s shelter where she would receive psychological and social rehabilitation while the investigations continued. On July 26, the prosecutor-general referred the three men and two women to criminal trial on charges of beatings and sexual assault. The boy was referred to the children’s court.
On June 29, the Cairo Economic Court sentenced Sama el-Masry, 42, a well-known TV personality, actress, singer, and dancer, to 3 years in prison and a fine of 300,000 EGP for “public indecency”. A public prosecutor’s statement on April 27 said authorities had ordered Al-Masry detained for publishing “sexually suggestive” videos on YouTube and other social media platforms. She is appealing the verdict. The prosecution also referred el-Masry for a separate trial for “inciting debauchery” which began on July 6.
HRW is of the opinion that the Egyptian authorities should drop prosecutions and quash convictions based on arbitrary vague laws that interfere with freedom of expression and privacy.
These Egyptian laws and government practices, according to HRW, violate the right to privacy, freedom of expression , and the prohibition of discrimination against women, including social and cultural discrimination, under international human rights law. Egypt’s obligations under international law and the African Charter on Human Rights and People’s Rights require that any limitations to freedom of expression must be proportionate, stated in a precise manner, and be necessary to protect national security, public order, public health, or morals in a democratic society. Morals must not be derived from one set of traditions, religion, or culture, but rather in light of the diversity of a society. Any limitations on these rights should respect the principle of non-discrimination. Any criminal law should be so clearly defined as to allow anyone to predict what conduct will be a crime.
The Convention on the Elimination of All Forms of Discrimination against Women, to which Egypt is a state party, requires state parties to “take all appropriate measures to eliminate discrimination against women in the political and public life” and “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
The recent arrests of women take place against the backdrop of a #MeToo social media campaign in which dozens of Egyptian women are speaking out on platforms such as Instagram, Twitter, and Facebook about their experiences of gender-based violence, assault, and rape.
“These serial arrests of women send a chilling signal about the state of women’s rights in Egypt,” Begum said. “Instead of tackling pervasive domestic violence, sexual harassment, and violence, Egyptian authorities appear intent on reinforcing societal discrimination by persecuting women and girls for how they appear online or what they say.”
The HRW also referred to Egypt’s ‘abusive’ morality laws as follows:
On July 29, the prosecutor general said in a statement that it “is necessary to protect national societal security” and that the general prosecution’s role requires not only prosecuting criminals but also acting as “a guardian of social norms.”
Several Egyptian laws restrict the right to privacy and freedom of expression. Among these overbroad laws that target women and girls in discriminatory and disproportionate ways are several Penal Code provisions that criminalize acts of “public indecency,” “inciting debauchery,” and the possession or distribution of materials deemed to violate “public decency.” The law does not define “public decency,” “debauchery,” or the acts that are punished.
In 2018, Parliament passed a cybercrimes law that restricts online content deemed to “undermine public morals” (article 26) or “family values” (article 25). The government is required to adopt and publish implementing regulations (or bylaws) within three months of passage, which it has not yet done. Article 27 criminalizes the use of the internet to “commit any other criminalized offense,” such as those in the Penal Code.
The recent trials were conducted by the economic courts, established in 2008 and consisting of appeals courts judges. Their jurisdiction includes violations of the 2018 cybercrimes law and the 2003 telecommunications law.
Human Rights Watch reviewed a 30-page court verdict with its reasoning in Hossam’s and al-Adham’s case as published by local news websites and also reviewed media reports and statements by the prosecution regarding these cases.
The court invoked articles 25 and 27 of the cybercrimes law and other Penal Code provisions about the complicity in helping al-Adham as a fugitive before her arrest and not reporting offenses.
In some recent “morality” prosecutions, such as those of Hossam, al-Adham, and el-Masry, the initial prosecutorial statements levelled broader accusations against them that could be interpreted as relating to sex work. Such accusations do not appear in the actual charges and verdicts but led to heightened media coverage, in which commentators pressed the authorities to punish the women and girls. Pro-government media heavily covered the prosecutions, including publishing photos of the women and their full names.
In many of these recent arrests, the prosecutor general’s statements said that investigations were initiated after receiving “complaints” by “social media users” through the prosecution’s Facebook page or after “lawyers” filed complaints. Human Rights Watch reviewed several videos on YouTube posted by people calling for the women’s arrest for “immoral content,” following which some of the women were arrested.
Egyptian law allows hisba complaints (accountability based on Islamic Sharia) by members of the public for a wide range of acts, such as a journal article, a book, or a dance performance that the person believes harmed the society’s common interest, public morals, or decency.
The authorities have acted upon such complaints for years to prosecute peaceful journalists, writers, and activists who appear to challenge government politics or societal norms. In 2015, a TV presenter, Islam al-Beheiry, received a five-year prison sentence on charges of “defaming religion” based on his criticism of some Islamic scholars and teachings. His sentence was reduced on appeal to one year and he was released in November 2016 after a presidential pardon.
Regarding the recent multiple arrests of women, the prosecutor general, Hamada al-Sawy, has publicly acknowledged acting upon such complaints.
Hanin Hossam and Mawadda al-Adham
On April 23, two days after Hossam’s arrest, the Office of the Prosecutor General issued a 13 page-statement detailing the Interior Ministry’s Morality Police investigation into her case. The statement said authorities found “evidence,” including written and audio communications and bank transfers, that they claim indicated that Hossam was involved in a network aimed at recruiting women and girls to join certain social media platforms that allow them to offer paid online chat and video services.
The Cairo Economic Court’s verdict on July 27 says that the prosecutor general received several complaints about the women, including from a lawyer named Abdel Rahman al-Gohary. The main evidence cited in the court’s reasoning are Hossam’s video in which she invites women to join Likee, saying that they can earn money by making live videos that get more viewers, as well as bank transfers and two social media accounts of Hossam’s and four of al-Adham’s on Instagram, TikTok and Facebook.
The court said in its reasoning for al-Adham’s prison sentence that she “undermined family values” by posting social media videos aiming at “seducing young men” to gain more viewership and followers to gain more money through advertisements. The court also said she appeared in the videos “in revealing clothes dancing in an immoral way in public places.”
The court said the three men – named in the verdict as Mohamed Abd al-Hamid Zaki, Mohamed Aladdin Ahmed, and Ahmed Sameh Ateya – were employees of Likee and Bigo Live, another Chinese app, and sentenced them for assisting al-Adham and Hossam in managing their media accounts, and possessing and using encrypted channels of online communications, a criminal offense under the 2018 cybercrimes law. The court rejected the defense lawyer’s request to have the Constitutional Court review and define acts that violate “family values.” The court claimed that such laws do not restrict free expression but are necessary to address “deviant ideas” and “moral degradation.” The court also said that parents should monitor their offspring and restrict their access to online content that changes their “identity, traditions and morals.”
Press statements by al-Adham’s lawyer say that the prosecution asked her to undergo a “virginity test,” which she rejected. The authorities may have subjected at least one other woman and the girl to such virginity testing.
“Virginity testing” is recognized internationally as a violation of human rights, regarded as a form of cruel, inhuman, and degrading treatment, gender-based violence, and discriminatory. The World Health Organization has said that “virginity tests” have no scientific validity and that healthcare workers should never conduct them.
In December 2011, Egypt’s Administrative Court condemned forcing detained women protesters to undergo virginity tests ordered by army generals, including Abdel Fattah al-Sisi, then-head of military intelligence. The court ruled that virginity tests “constitute a violation to women’s body and an assault on their humanity and dignity.” Despite the ruling, Egyptian rights organizations have documented the authorities’ continuing use of such tests. Egyptian prosecutors and judicial authorities should immediately cease this abusive practice and Egyptian legislators should pass a law making it illegal, Human Rights Watch said.
Manar Samy
On July 1, the authorities arrested Manar Samy, 30, a TikTok and Instagram content maker with more than 250,000 followers, following a hisba complaint submitted by a lawyer, Ashraf Farahat, saying that she had been “publishing sexually provocative videos on TikTok.” The prosecution ordered Samy detained for using her social media accounts in a way that “undermined the values and family principles of the Egyptian society.” A judge sent her to pretrial detention. On July 29, Tanta’s Economic Court convicted Samy as charged, sentenced her to 3 years in prison, and fined her 300,000 EGP. On August 9, Samy was released on bail of 20,000 EGP (US$1,250) pending her appeal. During a detention renewal hearing on July 5, the prosecution in Qaliubiya governorate ordered the arrest of Samy’s father, brother, and sister, media reports said, after an argument arose outside the courthouse over whether Samy could see her 3-year-old daughter. On August 5, the prosecution renewed the 3 family members’ detention for 15 days on charges of attacking a police officer.
The 2010 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders Bangkok Rules) provide that “women prisoners’ contact with their families, including their children, and their children’s guardians and legal representatives shall be encouraged and facilitated by all reasonable means.”
Sherifa Refaat & Noura Hisham
In early June, the authorities arrested Sherifa Refaat, 46, and her daughter, Noura Hisham, 24, a popular mother-daughter duo on TikTok and Instagram with more than 100,000 followers, for “undermining the family values of Egyptian society.” In a video posted on YouTube on April 30, one person who had made several complaint videos said that the authorities should arrest Refaat and Hisham “to send them where they sent Sama el-Masry.” A few weeks later, the Interior Ministry’s Morality Police arrested the two at an apartment in Cairo’s Heliopolis neighbourhood. The person who made the complaint video was the first to announce the news of their arrest on June 10.
Prosecutor General Hamada al-Say said on June 12 that the prosecution’s “analysis and monitoring” unit “received several complaints calling for their arrest” and that the prosecution staff “monitored the anger of social media users” over videos published by the two women.
Media reports said prosecutors accused the two of posting “sexually suggestive” pictures and videos “amounting to incitement to prostitution.” On June 27, a judge renewed pretrial detention for both. Their trial began on July 29 before Cairo’s Economic Court.
Discrimination and violence against women and media censorship: The recent “morality” arrests of women are taking place in an environment in which media and human rights organizations have been reporting escalating government restrictions aimed at “reshaping” artistic and cultural expression. For President al-Sisi’s government, the red lines are not just about political dissent but also “public morals” and societal norms. President al-Sisi has made several statements in which he criticized media that “has harmful effect” on the society.”

In 2018, Human Rights Watch reported a campaign to crush artistic freedoms in Egypt, including arresting pop singers, writers, and belly dancers. The authorities prosecuted several for alleged “indecency.”

“Morals” prosecutions frequently affect women disproportionately as they revolve around women’s clothes or behavior, reinforcing the deep-rooted societal discrimination women face compared to men. Most of the recently prosecuted women appeared in videos and photos – which constituted the basis for their arrest – in regular clothes that are common in Egypt. Many of the women social media influencers targeted also reportedly come from poorer social and economic classes. According to HRW, these arrests are taking place against the backdrop of a #MeToo social media campaign in which dozens of Egyptian women are speaking out on platforms such as Instagram, Twitter, and Facebook about their experiences with gender-based violence, assault, and rape. Egyptian security and judicial authorities often fail to pursue men accused of sexual harassment or assault.

The government also has failed to prioritize a draft law stalled in parliament since 2017 that would define and criminalize domestic violence. The UN estimates that almost a third of Egyptian women experience intimate partner physical or sexual violence in their lifetime. Weak implementation of a recent law that criminalizes female genital mutilation allows for the practice to remain highly prevalent.

In addition to squeezing online space for women, the authorities have waged against independent women’s and human rights groups, making it difficult for them to work without facing retaliation and prosecution. The authorities have, for the past five years, prosecuted and banned from leaving the country leading independent women’s rights activists, including Mozn Hassan, head of Nazra for Feminist Studies, and Azza Soleiman head of the Center for Egyptian Women’s Legal Assistance. Nazra had to shut down their offices in March 2018 as a consequence of a years-long asset freeze in connection with the ongoing prosecution.

The National Council on Women, a government entity tasked with empowering women and ending discrimination, has not issued any statements or taken any action to support women’s rights activists facing prosecution and travel bans or the women caught in the government’s serial arrests targeting social media content makers.
Non-discrimination and Access to Justice[6]
[6] Freedom House, Women's Rights in the Middle East and North Africa - Egypt, 14 October 2005, available at: 20 May 2022]

[43] “Without limiting what serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph….(d) significant economic hardship that threatens the person’s capacity to subsist.”
CONCLUSION
188. As a result, the Tribunal finds that the because of being removed to Egypt, there is a real chance that the applicant will suffer serious harm by reason of being a woman with liberal views and women’s rights advocate against domestic violence. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and as the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations.
189. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
190. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 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.
…

[2022] AATA 2294

25 May 2022

Key Legal Topics

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Immigration

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Legal Concepts

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Jurisdiction

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Statutory Construction