1811016 (Refugee)

1811016 (Refugee) [2022] AATA 4783 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811016
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rachel Da Costa
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2022 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – fear of Muslim extremists – accommodation – physical assault – claims of insulting Islam – medical conditions – state protection – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 9 April 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 23 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provides the following information. She was born in [year] in Giza, Egypt. She speaks, reads and writes Arabic. She is a Christian and her occupation is home duties. She is a widow. She completed primary school in Giza.
In Egypt, she has [specified family members]. She also has one daughter who lives in Australia and two sons[children] who live in [Country 1]. She has never applied to migrate to another country and has never travelled to any country other than Australia.
She arrived in Australia [in] October 2016 on her Egyptian passport issued on 28 July[in] 2012, as the holder of a Visitor visa.
Evidence before the Department
Protection visa application
In her protection visa application form, the applicant makes the following claims:
·     She is a widow and lives alone in Egypt.
·     She is active with the church and serves her Christian community
·     The current president is fighting the Islamists but only at a high level.
·     She experienced discrimination and persecution on a daily basis in Egypt because she is Christian.
·     She left her previous residence because she was persecuted and Muslims in the building wanted her out.
·     In her current residence she has the same problem. One particular family are fundamentalist and tried to get her to leave the building. They fought with her son who was trying to help her and this almost escalated to violence.
·     She was accused of insulting Islam when she commented on being awakened by the sound of Islamic prayers on the radio from this family’s flat. They have harassed her to convert to Islam
·     Because she is a widow they harass her more.
·     She was physically attacked while walking to or outside the church on a number of occasions.
·     The last few years, she stopped attending church on celebration days because of the danger.
·     She fears she will be persecuted as a Christian and she will be kicked out of her house.
·     The harm she experienced in Egypt is continuous attempts to force her to leave the building, harassed for not wearing a scarf, verbally abused, had stones and watermelon peel thrown at her, harassed to believe in Islam, unable to listen to Christian music that can be heard, and cannot complain about loud Muslim radio.
·     She cannot complain to the police because they do not take her seriously. Many times her family or others have complained about similar incidents and nothing was done.
·     She tried to move but the same thing happened in both residences.
·     If she returns, she will be harassed and discriminated against in any public space and attempts to have her leave the building will continue.
·     The authorities will not protect her because the government only protects against fundamentalist behaviour that is a threat to the country; they do not get involved in local issues.
The applicant provided a number of documents in support of her protection visa application:
·     Statutory Declaration of the applicant’s daughter, [Daughter A], who lives in Australia, declared 17 November 2015. In that statutory declaration, which was evidently made in support of the applicant’s Visitor visa application, the applicant’s daughter states that she has not seen her mother for more than four years since moving to Australia, her mother is not the type of person who likes to leave her home, her mother was previously granted a visa to travel to Australia but did not travel because of her family commitments at the time, she would like her mother to come and visit them for Christmas, her mother is financially stable and will be living with [Daughter A] during her visit.
·     a copy of the bio-data page of the passports of the applicant’s adult children;
·     a copy of the applicant’s passport, including the bio-data page.
Applicant’s migration history
As set out in the delegate’s decision, the applicant’s migration history is as follows:
·     29 May 2014: applicant granted Tourist visa (subclass 600) offshore (never used)
·     29 November 2015: applicant refused a Tourist visa (subclass 600)
·     4 October 2016: application for a Tourist visa (subclass 600) remitted by the Migration Review Tribunal (MRT)
·     20 October 2016: applicant granted a three-month Tourist visa (subclass 600) offshore
·     [October] 2016: applicant arrived in Australia
·     23 November 2016: applicant applied for a Protection visa
Interview with the Department
On 20 March 2018, the applicant attended an interview with a delegate of the Minister where she answered questions and provided further information about her claims for protection.
In that interview, as reflected in the delegate’s decision, the applicant provided the following additional information:
·     She attended church three times a week and visited poor people to bring things for them.
·     She has been verbally abused while going to church.
·     She lived in her flat for 50 years and people used to throw rubbish through her window because she is Christian. She lived in the [District 1] district of Cairo.
·     She had been living with her son for the last 10 years because she was worried about being alone at night and being harmed by ‘thieves and outlaws’.
·     She never reported her problems to the police because she did not want trouble.
·     Her son’s wife does not want her to keep living with them and wants her to return to her flat and live by herself. She cannot live with her daughter because she has a family.
·     She could get another flat close to her son or daughter but she does not want to sleep alone at night.
The delegate’s decision
On 9 April 2018, a delegate of the Minister refused the applicant’s application for a protection visa. The delegate found that the applicant has a family support network in [District 1], she is financially independent due to a pension from her late husband and she has not been a victim of past serious or significant harm. She is an elderly widow who does not want to live by herself. The delegate was not satisfied there is an existing threat to her safety in Cairo. The delegate considered country information about the situation for Coptic Christians in Cairo and found that while there have been attacks and there is discrimination, in the applicant’s circumstances she does not face a real chance of serious harm on the basis of her religion if she returns to Egypt. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 18 April 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision with her application for review.
The applicant’s 2015 Visitor visa application and hearing
As referred to in the delegate’s decision, on 29 November 2015 the applicant’s application for a Visitor visa for Australia was refused. The applicant’s daughter, [Daughter A], who is an Australian citizen, sought review of that decision in the MRT and was successful. The applicant was granted a Visitor visa on 20 October 2016, which is the visa she used to travelled to [Australia].
The Tribunal has listened to a recording of the MRT hearing and notes the key evidence given by the applicant’s daughter and the applicant is as follows. [Daughter A] gave evidence that the applicant was not keen to visit Australia because she has a good life in Cairo, with plenty of church and family commitments to keep her busy. She said she has not seen her mother for a few years and wants her to come for a visit so they can see one another. Her mother has money. The applicant lives in very good conditions, she goes to church every day and has never faced any harassment or threats. She is close to her family in Cairo.
The applicant gave evidence that she missed her daughter and wanted to come and visit her. She didn’t use her Visitor visa in 2014 because she didn’t want to leave her church commitments to travel. She goes as part of a church group to visit poor people and help them. She is financially sound and owns her own home. She has never had problems or threats of harassment going to church. She hosts her siblings and children when they come to visit her and enjoys those gatherings. She can’t live away from Egypt and wants to live in there.
The evidence given in this hearing is not discussed in the delegate’s decision. Where appropriate, this evidence is referred to further below.
The hearings
The applicant appeared before the Tribunal on 10 August 2022 and 1 September 2022 to give evidence and present arguments. The hearings were conducted by video using the Microsoft Teams platform (MS Teams) at the request of the applicant after her authorised recipient indicated in the Hearing Response form and an email that the applicant is elderly, has limited mobility and her family believed it would be difficult and distressing for her to attend the Tribunal in person. In these circumstances, the Tribunal determined that it would be reasonable and appropriate to hold the hearings by video. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, quick, and the potential delay to the matter if the hearings were not conducted by video.
The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The applicant was not represented in relation to the review although she had a person acting as an authorised recipient for correspondence. The applicant was assisted in the Tribunal hearings by her daughter, [Daughter A]. Having observed the applicant and asked her a couple of simple preliminary questions at the start of the first hearing, the Tribunal considered the presence and assistance of her daughter was both necessary and appropriate. The Tribunal also considers that it was in accordance with the Migration and Refugee Division Guidelines on Vulnerable Persons.[1] The applicant’s daughter sat with the applicant through most of the hearings and assisted her at times to understand the questions being asked via the interpreter and to respond. Sometimes the applicant’s daughter repeated the question to the applicant or prompted her to answer.
[1]>
Given the applicant’s circumstances, the Tribunal asked the applicant’s daughter a number of questions about the applicant’s health which it would ordinarily ask an applicant themselves in a hearing.
The applicant did not submit any medical reports about her health, however, the applicant’s daughter explained to the Tribunal that the applicant is becoming a bit forgetful, that she forgets things that happened in the past and sometimes talks about things that did not happen. According to the applicant’s daughter, the applicant’s General Practitioner said this is normal for the applicant’s age and the applicant has not been diagnosed with a medical condition such as dementia. The Tribunal accepts this evidence and it is consistent with the Tribunal’s observations and experience in talking to the applicant in the hearings.
The Tribunal has considered the applicant’s declining cognitive capacity and how this affected her ability to participate in the hearing. The Tribunal considers that with the presence and assistance of the applicant’s daughter, the applicant was able to participate in the hearing in a meaningful way. She was able to understand key questions from the Tribunal about her situation and she expressed her reasons for not wanting to return to Egypt sufficiently clearly. In addition to the assistance of the applicant’s daughter, the Tribunal is grateful for the assistance of the interpreters who carried out their roles with professionalism and kindness.
The Tribunal has also considered whether and how the applicant’s declining cognitive capacity affected the evidence she gave to the Tribunal. As stated above, while the applicant seemed confused at times and it was difficult for her to put timeframes on certain claimed events, overall, the Tribunal considers that the applicant understood the Tribunal’s questions and concerns and she was able to articulate the key things that had happened to her in Egypt and why she doesn’t want to return. Where appropriate, the Tribunal’s assessment of the applicant’s evidence, and her daughter’s evidence, is considered further below.
Overall, the Tribunal found the applicant’s daughter to be a witness of truth and the Tribunal accepts her explanation for the evidence she gave in the MRT hearing in 2016 about her mother’s situation. The Tribunal finds that the applicant did not give truthful evidence to the MRT about her situation and finds that some of her oral evidence to the delegate in the interview in 2017 was not truthful either. The Tribunal considers that the applicant’s oral evidence to the Tribunal was, for the most part, truthful, albeit confused at times. The Tribunal has taken this into account in its consideration of the applicant’s evidence. Where necessary, this is discussed further below.
The Tribunal observed that the applicant found giving evidence quite tiring and draining and at the end of both the first and second hearings she became very upset talking about why she does not want to return to Egypt and why she needs to stay with her daughter in Australia. In the circumstances, the Tribunal attempted to keep its questioning as short as possible, while still ensuring that it covered all relevant matters with the applicant and tried to put its concerns to her in a simple but accurate way.
The applicant’s physical health
In addition to the applicant’s declining cognitive state, her daughter gave evidence that the applicant has various physical health problems which require regular medical attention. The applicant’s daughter explained that the applicant has severe pain in her knees which means she cannot walk properly. The applicant also has high blood-pressure, high cholesterol, diabetes, and she had a lump in her breast removed which was cancerous. She did not have treatment for cancer but she requires follow-up medical care. The applicant requires help with feeding, toileting and washing and so her daughter is effectively her full-time carer and spends most of her time looking after the applicant and taking her to medical appointments. The applicant referred to some of her health problems during the hearing, which were consistent with her daughter’s evidence. The Tribunal accepts this evidence about the applicant’s poor health.
Nationality
The applicant claims to be a citizen of Egypt and provided to the Department a copy of her Egyptian passport issued [in] 2012. The delegate was satisfied the applicant was using her own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Egypt. The Tribunal finds Egypt is her receiving country for the purpose of assessing her claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Oral evidence from the applicant’s daughter
Because of the applicant’s cognitive issues, the Tribunal began by taking evidence from the applicant’s daughter to try to gain an understanding of the situation.
The Tribunal reminded the applicant’s daughter about the evidence she had given in the MRT hearing about the applicant’s Visitor visa application, which was very positive about her mother’s situation in Egypt and asked her to explain the discrepancy with the evidence in the applicant’s protection visa application. The applicant’s daughter explained that back then, she had not seen her mother for a few years and could only speak to her on the phone, and her mother kept quiet and never told her about what was truly happening to her in Egypt and the difficulties she was having. It was only once the applicant arrived in Australia that she told her daughter what had been happening and her daughter was very upset when she found out. She explained that the applicant has always been fearful but she tried to hide it from everyone so they did not worry. The applicant’s daughter explained that she only spoke to her sister in Giza from time to time. She also has a brother in Cairo.
The applicant’s daughter gave evidence that in Cairo, the applicant had been a widow since 2010 and lived on her own in the family apartment. The applicant started having medical issues with her knees which affected her mobility and made it difficult for her to leave her apartment. The applicant’s son would come and stay but the applicant had issues with his wife (her daughter-in-law) and so they could not live together and the applicant was on her own. She still relied on her son for help but the help he offered was limited and he and his wife didn’t want the applicant to live with them in Cairo. The reasons the applicant came to Australia were that her medical condition had got worse and she could not live on her own, and she could not live with her son or her daughter. The applicant’s daughter lives in Giza but she lives in a flat which is on the fifth level of a building with no elevator, so it was not practical for the applicant to live there because she cannot climb the stairs, and also her daughter’s husband does not want the applicant to live with them. The applicant’s daughter gave evidence that the conduct of her brother and his wife towards the applicant has made her (the applicant’s daughter) so upset that she does not speak to them anymore. The applicant’s son and his wife now live in the applicant’s unit in Cairo. The applicant’s son and daughter in Egypt both work for [the same employer] and earn average incomes.
The Tribunal accepts this evidence from the applicant’s daughter and her explanation for the change in her evidence about the situation of the applicant.
The applicant’s oral evidence to the Tribunal
The applicant gave evidence that she, and her husband who died in 2010, had lived in their unit in Cairo for around 60 years. It has two bedrooms and a lounge area. She said her son lives in it now with his wife and two children and he wanted her to get out of it. She was not happy living in the unit on her own because her knees were bad and she needed someone with her in case she had a fall. Her son would come and check on her. Her son’s wife does not want the applicant to live with them and the apartment is not big enough for her live with them anyway. She cannot live with her daughter in Giza because she is busy with her own family and her husband does not want the applicant to live with them. Also, their apartment is up lots of stairs and the applicant could not climb them because of her knees.
The applicant gave evidence that she came to Australia so her daughter could look after her. She said she is sick and can’t stay on her own. She couldn’t go back to Egypt at the end of her Visitor visa because of the problems she has there.
The applicant gave evidence that she is a Coptic Christian. She used to attend church in Cairo when she was young and healthy, but in more recent years when her health deteriorated and she couldn’t walk much she didn’t go out and she used to listen to Mass on the television or radio.
She used to experience problems in Cairo because the Muslims don’t like the Christians. Children in the local area used to throw things through her unit window like watermelon peel or bricks. This made her feel scared. Once she was hit in the ear with a ball but she didn’t tell her husband. She was spat on and verbally abused when going to church, and someone pulled her hair. The Tribunal tried to find out from the applicant how often these types of things happened to her. She repeated her description of some of the incidents and said it was ongoing and happened maybe every day. It made her feel upset and scared. The Tribunal put to the applicant that it understood these things were unpleasant and must have been upsetting for her, but even if it accepted that these things happened as she described, it might find they were not serious or significant harm. It also suggested to her that some of these things must have happened quite a long time ago. The applicant repeated that she didn’t tell her husband what happened and repeated her description of some of the events.
The Tribunal asked the applicant whether there were any bad things that happened shortly before she came to Australia. She responded that the thing that upset her was the situation with her daughter-in-law, and her doctor advised her that she needed someone to be with her. When asked why she didn’t tell her daughter in Australia or talk about this in the hearing for her Visitor visa, she responded that she had to say everything was ok because that is what she needed to say, and she didn’t tell her daughter because she didn’t want her to know and to be worried about her. The applicant also gave evidence that she still receives a regular pension due to her husband’s job working for [his employer].
The Tribunal asked the applicant whether she had anything else to say and she said she wants to stay here with her daughter. Her family in Egypt can’t look after her.
The Tribunal notes that in her oral evidence to the Tribunal, the applicant did not repeat the claims she made in her protection visa application about having to move house due to Muslim neighbours and the associated harassment she experienced with those people, or claim that she had been living with her son for the past 10 years as she told the delegate.
Findings
Given the applicant’s cognitive limitations and the fact that she became upset quite easily talking about her situation, the Tribunal did not put to the applicant directly that it might have doubts about the credibility of some of her claims of harm or give her specific examples because the Tribunal considered that this was likely to be futile and confuse the applicant even more and would not have been of assistance to the applicant or the Tribunal. However, the Tribunal did question the applicant about claimed events in Egypt and tried to clarify inconsistencies in her evidence to the extent it considered appropriate, and put to the applicant what its findings might be. The Tribunal considers that it complied with its procedural fairness obligations in a manner that was appropriate to the applicant’s unique circumstances.
Having considered the evidence of the applicant and her daughter, and taking into account the applicant’s cognitive limitations, the Tribunal finds as follows.
The Tribunal accepts that the applicant is a widow and Coptic Christian who lived in the [District 1] district of Cairo for many years until she came to Australia in 2016. The Tribunal accepts that her husband died in 2010 and since then she has lived mainly on her own in the family apartment in Cairo. The Tribunal accepts that the applicant lived in the family apartment for around 60 years. The Tribunal finds that over the years, the applicant has experienced various incidents including having watermelon peel and bricks thrown through her window, being hit in the ear by a ball, being spat on, verbally abused and having her hair pulled. The Tribunal is prepared to accept that at least some of these incidents were directed at the applicant because she is a Christian. The Tribunal finds that these events did not happen frequently, particularly in recent years, and it does not accept that they happened every day. The Tribunal finds that some of these events, such as being hit by the ball, happened while the applicant’s husband was still alive, so prior to 2010. Other incidents, such as being verbally abused and spat on going to church, must have happened before she became effectively house-bound due to her medical issues a few years before coming to Australia. The Tribunal accepts that these incidents made the applicant feel upset and scared. The Tribunal finds that these incidents, while unpleasant, did not amount to serious or significant harm.
The Tribunal accepts that for several years before coming to Australia in 2016, the applicant had health and mobility problems which meant she could not leave her apartment often, and not without the assistance of her son, and that she stopped attending church in person some years before coming to Australia. The Tribunal accepts that the applicant’s daughter-in-law did not want the applicant to live with them and so her son helped the applicant, but the applicant continued to live on her own. The Tribunal finds that the applicant was not happy about this situation because she needed more assistance and she felt scared on her own, including being scared of having a fall. The Tribunal accepts that the applicant’s son and daughter-in-law now live in the applicant’s apartment in Cairo and that she is not welcome to live with them. The Tribunal accepts that the applicant’s daughter in Giza lives in an apartment on the fifth floor of a building with no elevator and so it is not practicable for the applicant to live in that apartment. The Tribunal also accepts that the applicant’s son-in-law (her daughter’s husband in Giza) does not want the applicant to live with them. The Tribunal finds that the applicant continues to receive a regular pension of around Egyptian Pounds [amount] due to her husband’s employment [specified].
Based on the evidence of the applicant and her daughter, the Tribunal finds that the reason the applicant came to Australia was because she did not want to continue living on her own and she wanted to stay with her daughter and be looked after. The Tribunal accepts that this is why the applicant (on her own admission) gave untruthful evidence to the MRT in her Visitor visa hearing in 2016. The Tribunal also finds that based on the oral evidence given by the applicant and her daughter in the Tribunal hearing as discussed above, and the Tribunal’s findings set out above, the applicant fabricated and/or exaggerated some of the claims of harm in her protection visa application and in her oral evidence to the delegate and it does not accept those claims.
As the Tribunal understands the claims in the applicant’s protection visa application as drafted, they mostly relate to the applicant’s claimed circumstances in the short to medium term before the applicant arrived in Australia. In light of the Tribunal’s findings above about the applicant’s circumstances for several years leading up to her arrival in Australia, including the fact that she was effectively house-bound because of her health in her family apartment where she had lived for around 60 years, the Tribunal does not accept a number of these written claims and other claims she made orally to the delegate set out above. Accordingly, the Tribunal does not accept that in the short to medium term before coming to Australia the applicant was active with her church, attending several times a week and that she served her Christian community. The Tribunal does not accept that she stopped going to church on celebration days because of the danger or that she was physically attacked while walking to or outside church on a number of occasions, or that she experienced discrimination and persecution on a daily basis. Given the Tribunal’s finding that the applicant lived in her family apartment for around 60 years, the Tribunal does not accept that the applicant left her previous residence in Cairo because she was persecuted and Muslims in the building wanted her out. The Tribunal also does not accept the applicant’s claims about the problems she faced in the place she claimed to have moved to, and was living in, prior to coming to Australia, as it does not accept that she moved residences, or that she tried to move residences, or that other people in the building tried to get her to leave the building, or that the same thing happened in both residences. The Tribunal does not accept that the applicant was harassed for not wearing a scarf, or that she had stones thrown at her, or that she was harassed to believe in Islam, or that she was unable to listen to Christian music or that she could not complain about loud Muslim radio, or that she was harassed because she was a widow. The Tribunal does not accept that she was unable to complain to the police, or that she tried to complain to the police. The Tribunal does not accept that the applicant lived with her son for ten years before coming to Australia.
Does the applicant satisfy the refugee criterion?
In her protection visa application form, the applicant states that if she returns to Egypt she fears she will be persecuted in public as a Christian and she will be kicked out of her house (by Muslims). In the interview with the delegate, the applicant stated that if she returns to Egypt she fears being alone at night and she fears persecution as a Christian.
Based on the Tribunal’s findings above, including that her son and his family are now living in her former apartment, the Tribunal does not accept that the applicant would be kicked out of her house by Muslims if she returned to Egypt. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if she returned to Egypt in the foreseeable future.
The Tribunal accepts that the applicant fears being alone at night, and it is prepared to accept that she has a subjective fear of being persecuted as a Christian in Egypt, particularly given her cognitive decline. The Tribunal has considered whether the applicant would face a real chance of serious harm if she returned to Egypt in the foreseeable future for these, or any other, reasons.
In considering this, the Tribunal is prepared to accept that the applicant cannot live with her son in Cairo or her daughter in Giza for the reasons explained above and that they cannot give her the constant care she requires. However, the Tribunal does not find (and the applicant did not suggest) that is she is completely estranged from her son and daughter in Egypt.
In the Tribunal hearing, the Tribunal discussed with the applicant the possibility of her living in an aged care or ‘elderly’ home in Cairo. The Tribunal put to the applicant that it had information from Egyptian medical journals and online articles that indicate there are elderly homes available for people in Egypt and they exist in Cairo, which is where she used to live.[2] The country information acknowledges that traditionally, caring for older people was a duty of the family but these days that is not always possible.[3] While there is not a great deal of information available about elderly homes in Cairo, country information indicates that some of these homes are run by the Coptic church and Coptic Christians have access to these elderly homes in Cairo.[4] The country information consulted by the Tribunal does not indicate that there are safety issues faced by these Christian elderly homes (or other elderly homes) due to religious or communal violence.[5] In terms of the level of care provided to residents, the information available to the Tribunal about elderly homes does not indicate that residents are not adequately cared for or do not have access to medical attention. Further, there are several designated Coptic Christian hospitals in Cairo that provide a range of medical services[6] and various services for the elderly are provided by government, private and non-governmental sectors.[7] The Egyptian Constitution requires the state to guarantee the health of the elderly and to provide them with appropriate pensions to ensure a decent standard of living. The Ministry of Social Solidarity is responsible for providing social care and social protection for the elderly and has put in place a range of measures to assist with the care of elderly Egyptian people, including in relation to elderly homes, particularly for those who are vulnerable and lack support from their family network.[8] There is currently a draft law on the ‘Rights of the Elderly’ which has been approved by Cabinet and is before the Egyptian Parliament for discussion and approval.[9]
[2] Ministry of Social Solidarity’s Interventions for the Elderly (2022) (accessed 14 October 2022); ‘Health Status, Family Support and Depression Among Residents of Elderly Homes and those Living with Families in Benha City and Associated Factors’, S Badr and H Shaheen, Egyptian Journal of Community Medicine, Volume 35(1), January 2017 (accessed 14 October 2022); ‘Egypt – Ageing Population’, Hala S Sweed, Manar M Maemon, Egyptian Journal of Geriatrics and Gerontology, Volume 1(1), March 2014 (accessed 14 October 2022); ‘Older adults home-based care in Cairo: Asset mapping towards community development’, Yomna El-Taweel, American University in Cairo, 15 April 2022, (accessed 14 October 2022)
[3] (accessed 14 October 2022); (accessed 14 October 2022); ‘Egypt – Ageing Population’, Hala S Sweed, Manar M Maemon, Egyptian Journal of Geriatrics and Gerontology, Volume 1(1), March 2014 (accessed 14 October 2022); ‘Older adults home-based care in Cairo: Asset mapping towards community development’, Yomna El-Taweel, American University in Cairo, 15 April 2022, (accessed 14 October 2022)
[4] (accessed 14 October 2022); (accessed 14 October 2022)
[5] (accessed 14 October 2022); (accessed 14 October 2022); (accessed 14 October 2022); (accessed 14 October 2022); DFAT Country Information Report Egypt 17 June 2019
[6] These include the Coptic Hospital: (accessed 14 October 2022); St John Hospital (accessed 14 October 2022); Coptic Orthodox Association Hospital (accessed 14 October 2022)
[7] ‘Egypt – Ageing Population’, Hala S Sweed, Manar M Maemon, Egyptian Journal of Geriatrics and Gerontology, Volume 1(1), March 2014 (accessed 14 October 2022)
[8] Ministry of Social Solidarity’s Interventions for the Elderly (2022) (accessed 14 October 2022); ENICBCMed (accessed 14 October 2022)
[9] Ministry of Social Solidarity’s Interventions for the Elderly (2022) (accessed 14 October 2022)

The Tribunal explained to the applicant that it might find that if her family cannot look after her, with her pension and as a Coptic Christian, she would have access to an elderly home in Cairo where she would not be alone, she would be safe and she would be looked after. The applicant, with some input from her daughter, responded that some of the good homes are very expensive and she could not afford it and the applicant said she knows people who are in these types of homes but they are not comfortable or happy. She said it will not work for her if she goes back and she is really happy with her daughter here who looks after her very well. The applicant became upset talking about this. The Tribunal explained to the applicant that it would consider what she has said, but some of what she had said did not match the country information the Tribunal has, and the Tribunal has to consider whether, if she lived in an elderly home, she would face a real chance of serious harm.
The Tribunal has considered the responses of the applicant and her daughter and understands the applicant’s very strong wish to remain in Australia to be looked after by her daughter. However, based on the country information referred to above, the Tribunal finds that the applicant would have access to an elderly home in Cairo and that this would be the case particularly given she has a guaranteed income from her pension which could contribute to the cost. The Tribunal finds that based on the country information referred to above, the applicant would be looked after and would have access to medical care and she would not be at risk of harm due to her Christian religion. While the medical and other care in one of these homes in Cairo might not be of the standard she receives in Australia from doctors and her daughter, this would be due to lack of resources rather than any other reason. Accordingly, the Tribunal finds that if the applicant returned to Egypt in the foreseeable future, she would be able to live in an elderly home in Cairo and she would not face a real chance of serious harm.
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Egypt now or in the foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether she meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[10] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[10] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Request for Ministerial intervention
The applicant and her daughter requested Ministerial intervention if the Tribunal’s decision is not favourable. Section 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’ and has decided to refer the matter for consideration for the following reasons.
The Tribunal notes the exceptional circumstance:
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
The Tribunal has found that the applicant is an elderly woman in poor health, including experiencing cognitive decline, who requires constant care. She has a daughter in Australia, who is an Australian citizen, and who is willing and able to provide that care for the applicant’s remaining years. Culturally, it is the applicant’s expectation that a family member would do that for her. Based on the Tribunal’s findings above about the situation for the applicant if she returned to Egypt in the foreseeable future, which is that she would need to live in an elderly home rather than being able to live with family, as well as noting that the applicant may not be in a medically-fit state to travel to Egypt and would certainly not be able to travel unaccompanied, the Tribunal considers that there are compassionate circumstances regarding the applicant’s situation that if not recognised would result in the applicant facing significant emotional and physical hardship and her Australian daughter also facing great emotional hardship if the applicant were required to return to Egypt.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 4783

18 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction