1815583 (Refugee)

[2022] AATA 1347

1815583 (Refugee) [2022] AATA 1347 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1815583

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Nicole Burns

DATE:24 March 2022

PLACE OF DECISION:  Melbourne

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

The Tribunal affirms the decision not to grant the second named applicant a Protection visa.

Statement made on 24 March 2022 at 1:52pm

CATCHWORDS

REFUGEE – protection visa – Egypt – Federal Court remittal – religion – particular social group – Coptic Christian woman – attacks by Muslim extremists – employment – encouraging conversions to Christianity – physical and sexual assault – death threats – anti-Christian violence – gender-based violence – fragile mental and physical health – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

AGA16 v MIBP [2018] FCA 628
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497

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

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

2. The applicants are a married couple from Egypt who last arrived in Australia holding visitor visas [in] April 2013, and applied for the Protection visas on 18 June 2013.  The delegate refused to grant the visas on 13 June 2014.  They sought a review of that decision with a differently constituted Tribunal who affirmed the delegate’s decision on 21 January 2016.[1]  The applicants appealed the first Tribunal’s decision.  The application was dismissed by the Federal Circuit Court of Australia (FCCA) [in] August 2017.  Subsequently ([in] May 2018) the appeal was allowed by the Federal Court of Australia (FCA), and the case remitted to the present Tribunal for reconsideration.

   [1] AAT No. 1411780

3. The nationality of the applicants is not in dispute.  They arrived in Australia holding Egyptian passports and claim to be Egyptian nationals.  The Tribunal accepts they are Egyptian nationals and finds that Egypt is their country of nationality for the purposes of assessing their protection claims. 

4. The first named applicant (hereafter the applicant) appeared before the Tribunal on 21 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B], who are friends of her son, [Son A], based in Melbourne, via the telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review.  The representative attended the hearing. 

   Second named applicant

6. During a telephone conversation with a Tribunal officer on 2 December 2021 the representative advised that the second named applicant had left Australia. On 14 December 2021 the representative submitted a prehearing submission and supporting documents, which included a letter from the second named applicant dated 6 September 2021 who confirmed that he is in Egypt, having arrived there in March 2017.  At hearing the applicant confirmed her husband had returned to Egypt, where he presently resides. 

7. As discussed at hearing, section 36(2) of the Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a Protection visa may only be granted if the applicant is in Australia.  The Tribunal is satisfied on the basis of this evidence that the second named applicant is not in Australia. Therefore, the second named applicant does not satisfy the requirements of s 36(2) and cannot be granted a Protection visa.  In these circumstances the Tribunal affirms the decision to refuse to grant the second named applicant a Protection visa. 

   CRITERIA FOR A PROTECTION VISA

8. 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, the applicant 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.

9. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection 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 the applicant 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’).

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims and evidence

13. The applicant is [an age]-year-old married Coptic Christian woman from Cairo, Egypt who seeks to invoke Australia’s protection obligations for several reasons.  These include due to a personal dispute with a former (Muslim) colleague; being blamed for converting one of her [clients] from Islam to Christianity; as a Coptic Christian; and as a Coptic Christian woman in Egypt. 

14. The Tribunal accepts the applicant is a Coptic Christian woman.  Her marriage certificate – a copy of which was provided to the Department – shows she married her husband in a Coptic orthodox church in Cairo [in] September 1979.  She has also provided to the Tribunal a letter dated [in] December 2021 from [Leader A], Coptic Orthodox [Church in Melbourne], who confirmed her membership of their congregation at [Church 1 in] Melbourne.  

15. The applicant and her husband came to Australia holding visitor visas [in] April 2013 where their son ([Son A]) lived at the time.  As noted her husband returned to Egypt in March 2017, purportedly because his mother was unwell (she died [in] March 2020).  At hearing the applicant said [Son A] returned to Egypt in early 2020 and has become stuck there due to COVID-19-related travel restrictions.  He plans to return to Australia in early 2022.  The applicant’s other son, [named], resides in Cairo along with his wife.  In Australia the applicant said she currently lives alone in [Son A’s] (rented) house and works five days a week as [an occupation 1].

16. The applicant’s initial claims before the Department were set out in a statutory declaration from her husband dated 13 June 2013, who states that he made the statement in support of the Protection visa application on behalf of himself and his wife (the applicant).  In it the applicant’s husband states in summary that:

    ·They fear being persecuted by the Muslim Brotherhood as Coptic Christians in Egypt.  As Coptic Christians they suffered ongoing discrimination in their workplace and generally in Egypt.  His wife did not receive well deserving promotions that went to Muslim employees. 

    ·The situation has worsened since the end of the Revolution for Christians, who are exposed to rape, kidnapping and murder on a daily basis.

    ·He and his wife have received many threats to convert to Islam, at their workplace, in areas such as shops, and over the phone.  They were so stressed they sought psychiatric help.

    ·All government agencies are run by Muslims and there is no protection for Christians in Egypt.  On several occasions he and his wife tried to make a statement to the police about the threats they received but they were not taken seriously.

    ·In around October 2012 they witnessed demonstrations in front of the Presidential Palace in Cairo, [and] there were arguments between Muslim extremists supporting the Muslim Brotherhood and Coptic Christians.  Some people in the crowd became aggressive towards them when they noticed a cross necklace on his wife’s neck and told them they would not live in peace unless they convert to Islam.

    ·After this incident they noticed people following them.  They also received phone calls from people demanding that they convert to Islam.  They tried to report the matter to the police but they refused to take their statement as they were Christian and the police were afraid of the ‘Muslim reaction’.

    ·One day when his wife was walking down a street a man pulled up her dress and tried to undress her: he remarked that as a Christian woman she deserved it.  She managed to escape.  This happened twice: in January 2013 and March 2013.  His wife sought help from her psychiatrist (who she had seen since March 2012).

    ·One day in December 2012 – [specified] – the applicant’s husband awoke to find several Christians had been murdered outside their home and on their street.  His car had been destroyed, as were others on his street: the ones with crosses hanging from rear-view mirrors.  Again the police would not let them make a report due to the Muslim reaction.

    ·[In] April 2013 his wife was assaulted by two men on motorcycles whilst walking home from Tahrir square, ripping her cross necklace, her clothing and grabbing her breast.  They were Muslims with long beards, and said ‘let the cross help you infidels’.  His wife made a statement at [Police Station 1] that same day: however, the police officer did not report that she was assaulted.

    ·His wife has received many threats from Islamic extremists that they will hunt us down, rape and kill her (and then him).  They fear if they return to Egypt they will follow through with their threats.

17. The applicant also provided to the Department a statutory declaration dated 31 March 2014 in which she introduced new claims related to a dispute with a former Muslim colleague, [Colleague A].  Specifically she stated that in 2010 she discovered a Muslim employee at the [Agency] she worked at in Cairo (called [Agency 1]) had obtained a promotion (to General Manager) above her in 1998 based on false papers. She confronted [Colleague A], told her she would report her to the Minister of Education but on the way had a car accident, which she believes [Colleague A] was behind. [Colleague A] threatened her several times after the car accident. 

18. Material provided to the Department in support of the Protection visa application included a copy of the applicant’s marriage certificate; a translated copy of a police report from [Police Station 1], [at a location], reportedly opened on [a day in] April 2013, which described an assault and robbery on the applicant by two persons on a motorcycle on that day; and a psychological report in relation to the applicant dated [later in] April 2013 from [Doctor A], in Egypt.

19. Copies of these documents were submitted to the first Tribunal along with a statutory declaration from the applicant dated 13 February 2015.  In it the applicant expanded upon her evidence with respect to [Colleague A].  She stated, among other things, that [Colleague A] has some sort of connection with her neighbours; [Colleague A] told them she was a Christian fanatic and extremist at the [Agency] she worked; as she volunteered to [serve Christian clients], she was known as a bit of a fanatic Christian in the area; her neighbours thought she hated Muslims; some [clients] at [her Agency] talked to her about their problems, and she gave them booklets about prayers and miracles; and because they were Muslims she thinks their [families] saw her as a threat and bad influence because she was close to them. 

20. The applicant also introduced new claims in her February 2015 statutory declaration, about a former [client] who she was close to – [Ms A] – having converted to Christianity which she believes is how she obtained a reputation of being a fanatic Christian.  She believes she has been connected to [Ms A’s] conversion because she used to take her with her at the church and also because she provided her with Christian books.  She states that a woman called [Ms B] – who is the mother of another [client] and friend of [Ms A’s] mother – contacted her on an [instant messaging app] in Australia, asking if she was satisfied, if she got what she wanted, and threatened to kill her (and [Ms A]).  The reason she had not raised this claim before, the applicant explains, was because she had limited time with her previous lawyer to prepare the Protection visa application and was only questioned for a short time at interview.  Additionally, she only learnt of [Ms A’s] conversion after the interview with the delegate, she stated.

21. Also provided to the first Tribunal was a statutory declaration from the applicant’s husband dated 13 February 2015 in which he elaborates on his background, claims and concerns (and those related to his wife), and a psychological report from [a named] psychotherapist, in relation to the applicant dated 12 January 2015. 

22. Before the current Tribunal the representative provided a written submission setting out the background to the applicant’s case, her protection claims, and her current circumstances.  In it she refers to country information where relevant to support her contention that the applicant’s fears of persecution on return to Egypt as a Coptic Christian woman (among other things) are well founded. 

23. Material provided to the current Tribunal included letters from: the applicant’s GP;[2] her treating psychiatrist;[3] her husband[4] in Egypt; from [Church 2] [in Town 1]; and from [Leader A], Coptic Orthodox [Church in Melbourne].[5]  Copies of the applicant’s mother-in-law’s medical records and death certificate pertaining to her death in Egypt in March 2020 were also provided.

    [2] Dated 14 October 2021

    [3] Dated 7 September 2021

    [4] Signed on 6 September 2021

    [5] Dated [in] December 2021

24. In her oral evidence to the Tribunal the applicant described her background, reasons for leaving Egypt in 2013, current circumstances, and extant fears if she has to return there, summarised as follows. 

25. The applicant said in Egypt she lived with her husband in an apartment they rented in [Town 1], a suburb in Cairo.  She worked as [an occupation 1] and in more senior administrative roles at [Agency 1] in Cairo for around 30 years until retiring in around [year] before coming to Australia in April 2013. She was promoted many times during this period: the last time to [Section leader] in 2011.

26. The applicant said in Egypt she was happy, settled and never wanted to leave until problems that ensued following a falling out with a Muslim colleague, [Colleague A].  She claimed [Colleague A] had obtained a promotion (over her) based on false qualification and experience claims, which the applicant had tried to expose.  Specifically sometime in around 2008 she (and other colleagues, including [Colleague A]) applied for a promotion, however, in doing so discovered her files had been stolen (along with others).  [Colleague A] was successful in getting promoted at the time even though she was not the oldest and her background did not match the criteria for the position.  Sometime later the applicant accessed [Colleague A’s] application – she said ‘somebody’ gave her the file in an indirect way and she made a copy – and discovered she had provided fake files and transcripts to obtain the promotion.  The applicant then confronted [Colleague A] and told her she planned to report her to the [relevant Government Minister].  However, on her way to the Minister’s office a car crashed into the applicant’s vehicle and she ended up in hospital.  Whilst there [Colleague A] rang her and told her to discard all the papers she had about her.  The applicant said she gave a statement to a Police Officer at the hospital and told him she believed [Colleague A] was behind the accident, noting she felt she was being followed just prior. The applicant said she thinks the accident occurred sometime in 2009 or 2010.

27. After the applicant left the hospital her husband went to the police station and asked for a copy of the applicant’s statement.  The police at the station said they did not have it so he returned to the hospital: however, there he was told that the statement was in another name, not the applicant’s, leading them to believe [Colleague A] had taken the statement.  The applicant said after this incident she received many threatening phone calls from [Colleague A], wishing her dead. 

28. Due to injuries from the accident, a [medical condition 1] diagnosis around this time, and related depression the applicant took extended medical leave from work.  When she returned to work [Colleague A] – then her boss – would regularly criticise her work, always finding fault.  She added that this was during the Muslim Brotherhood movement period in Egypt, and they lived [near a specified location].  [Colleague A] also lived nearby.

29. The applicant said after she returned to work [Colleague A] continued to send threatening phone messages to her from private numbers.  She said they did not stop until she retired, then said they did not stop until she came to Australia.  She said she had no contact with [Colleague A] after she retired. 

30. The applicant said because of the accident (and then being diagnosed with [medical condition 1]) she never got around to lodging the complaint about [Colleague A] with the [relevant Government] Minister.  She kept [Colleague A’s] file, however, which remains at her apartment in Cairo.  (The applicant told the Tribunal she and her husband have continued to pay rent on that apartment, despite having left Egypt in 2013.)  

31. The applicant said she is concerned if she has to return to Egypt the threats (from [Colleague A]) will continue because she has [Colleague A’s] file.  When asked if she told the Department and/or first Tribunal about the existence of this file, the applicant replied that (maybe) they did not ask.  She said her husband did not return to the apartment when he returned to Egypt, wanting to avoid their neighbours.  The Tribunal asked the applicant what she plans on doing with the file if she returns to Egypt: she answered only that she would not be going back to the apartment initially. 

1. The applicant told the Tribunal in Australia she received threats – via an [instant messaging app] – from the mother of a former [client] of hers in Egypt, [Ms A].  She explained that sometime before her car accident, [Ms A] – who was Muslim – sometimes told her about her problems at home and the applicant told her to pray.  [Ms A] also took brochures about Christianity from the applicant (who in addition to [her specified role], also [served Christian clients] at the [Agency]) several times and on one occasion asked if she could attend a party/event at church.  The applicant told her she should not, however, on arrival at the church she saw [Ms A] was there with some other [people].  Sometime later – after the applicant’s car accident – the [Agency’s] [Manager A] called the applicant into his office and told her [Ms A’s] mother had accused the applicant of trying to convert [Ms A] to Christianity.  An internal investigation was undertaken by the [Agency]: the applicant was given a warning not to interact with [Ms A], but was allowed to keep her job. 

2. The applicant said [Ms A’s] mother and [Colleague A] were friends and she believes some of the threatening messages she received from private numbers during this period may have been from [Ms A’s] mother, at [Colleague A’s] bidding.  Then sometime later when the applicant was in Australia – after the interview with the delegate – the applicant received a [message] from [Ms A’s] mother threatening to kill her for converting [Ms A], which she claimed is legal under Sharia law.  The applicant said she did not tell the Department about [Ms A] on advice from her lawyer at the time to keep her case focused on [Colleague A].  The applicant believes [Colleague A] encouraged [Ms A’s] mother to threaten her because she has kept her file which contains incriminating information about [Colleague A].   

3. Shortly after she received the message from [Ms A’s] mother the applicant said she blocked all numbers and cancelled her [messaging] application.  Nonetheless she said [Ms A’s] mother, who blames her for converting [Ms A] to Christianity, will not stop and she thinks [Colleague A] is encouraging her.  [Colleague A] will continue to ‘annoy’ her because she has kept her file showing she forged official documents. 

4. The applicant said her problems with [Colleague A] (and [Ms A’s] mother) were the main reasons she and her husband left Egypt, however, at that time there was also a lot of unrest, including sectarian violence, and demonstrations towards the end of 2012.  She saw people killed on the street, her husband’s car was burnt (along with other cars on their street containing bibles or crosses), but they were not compensated.  They spoke to a Human Rights Lawyer at the time about possible compensation, who advised them to leave Egypt given the unrest and targeting of some Christians.  She added that the gas cannisters used in several demonstrations also affected her health and on one occasion during the Morsi demonstrations in January 2013 whilst they were going shopping, her husband stood in front of her on the street and had gasoline thrown on to his leg, suffering burns.  They did not report this incident to the police as no police stations were open at the time, as they were under the Muslim Brotherhood’s control.  The applicant said she felt she was targeted and provoked by [Colleague A] and [Ms A’s] mother in this period. 

5. The applicant said she mainly fears [Colleague A] and [Ms A’s] mother on return to Egypt.  However, she also fears returning as a Coptic Christian woman.  She said she has spoken before (and did not want to again) about several incidents that occurred to her in Egypt.  She said if a woman walks the streets in Egypt without a hijab, even in Cairo, they will be insulted, treated in a disrespectful way, and might be touched.  When asked by whom, the applicant replied ‘fanatic Muslims’.  She added that even if the situation has improved somewhat in Egypt, the way women are treated on the street is still bad.  She said there were three incidents - in January, March and April 2013 - in which she was the victim of an attack and attempted robberies on the streets in Cairo.  She was reluctant to talk about the incidents, which were upsetting to remember, but said that because [Colleague A] lived on the same street, she suspects that she was behind the attacks.   

6. The applicant said she was born a Christian and grew up in Egypt practising her Christian religion without any problems.  However, she did experience ‘persecution’ in Egypt as a Christian.  For example at work she was given more work and was treated differently from her Muslim colleagues, who were preferred. 

7. In his oral evidence to the Tribunal [Witness B] said he met the applicant through her son ([Son A]), who is his friend, several years ago.  [Son A] told him when the applicant was in Egypt she was not able to obtain higher positions, which instead went to a Muslim woman called [Colleague A], who had relied on false documents to get a promotion.  He added that it is better for [Colleague A] if the applicant disappears, otherwise there may be a new investigation into the matter.

8. In his oral evidence to the Tribunal [Witness A] – also a friend of the applicant’s son – said he is not aware of the specific details about why the applicant applied for protection but in general terms thought it related to someone at her work giving her a hard time.  He added that he thinks it is personal, and a religious matter, noting a lot has happened to Christians in Egypt.  He said whilst nowadays the situation has settled in Egypt due to the current President, it does not mean radical Islamic groups are not there, which can make some Christians feel unsafe.

9. Having regard to the evidence before it, including the applicant’s and the witnesses’ oral evidence, the representative’s submissions, and other supporting documents that were relevant, the Tribunal has made the following findings about the applicant’s alleged past experiences and related protection claims, and about whether she faces a well-founded fear of persecution on return to Egypt given these findings. 

   Dispute with a Muslim ex-colleague ([Colleague A])

10. The applicant claims a former Muslim colleague at the [Agency] where she worked in Cairo, [Colleague A], would seek to harm her on return to Egypt because she threatened to expose [Colleague A’s] reliance on fraudulent documents (and assertions) to obtain a promotion in the past.  She claims [Colleague A] orchestrated a car accident when the applicant was en route to lodge a complaint with the [relevant Government] about [Colleague A] and thereafter threatened her several times, up until she left Egypt.  She claims [Colleague A] has encouraged others to threaten and harm her, including the mother of a Muslim [client], [Ms A] who has allegedly converted to Christianity, and people who attacked her in several incidents in early 2013, before coming to Australia.  She claims [Colleague A] will continue to threaten her if she returns to Egypt because she has retained the file against her and can still lodge a complaint. 

11. The Tribunal accepts the applicant worked as [an occupation 1] and [occasionally served Christian clients] at [Agency 1], an Islamic government [Agency] in Cairo for around [number] years, retiring in around [year].  It accepts her last position held was [Section leader] as indicated at hearing.  It accepts she was one of the few Christian [workers] at the [Agency] and that the majority of [clients] were Muslim.  The Tribunal accepts she worked with a Muslim [Colleague A], who was also her friend and lived in the same neighbourhood as the applicant and her husband in [Town 1], [in Cairo].  The Tribunal accepts they had a falling out, possibly triggered by [Colleague A] obtaining a promotion above the applicant in the past.  The Tribunal also accepts the applicant’s claims to have been in a car accident [in] October 2010, and to have been diagnosed with [medical condition 1] shortly thereafter.[6] 

    [6] On 27 December 2010 according to a copy of a translated medical report from [Doctor B] contained on the Departmental file.

12. However, for the following reasons the Tribunal has several concerns (some of which were discussed at hearing) about the applicant’s claims to have discovered that [Colleague A] obtained a promotion based on false information (and documents), that the applicant confronted her and threatened to report her to the [relevant Government Minister], that [Colleague A] orchestrated a car accident to prevent her from doing so, and thereafter threatened her (and encouraged others to threaten and harass her) in order to prevent her from reporting her to the Minister.   

13. First, the applicant’s evidence about this matter (and related events) has grown and changed in some respects over the course of the Protection visa application and two reviews.  [Colleague A] is not mentioned at all in the applicant’s husband’s statutory declaration provided in support of the Protection visa application in 2013, the content of which instead focuses largely on general difficulties faced by Coptic Christians in Egypt around 2012.  [Colleague A] is first introduced in the applicant’s March 2014 statutory declaration provided to the Department.  Evidence about her relationship with [Colleague A] and related problems are expanded upon before the first and current Tribunal, to the point that before the current Tribunal the applicant claims that she suspects [Colleague A] is behind many past incidents in Egypt (in addition to the car accident) including gasoline thrown on her husband’s legs, her alleged sexual assaults in early 2013, and purported threats from [Ms A’s] mother received in Australia.  Yet she did not mention that she thought [Colleague A] was behind these incidents in her March 2014 and February 2015 statutory declarations.  Whilst she mentioned her husband’s legs were burnt as a result of a man throwing a bottle of liquid on the street near where they were walking one night in January 2013, who she had recognised as one of her Muslim neighbours riding a bike in her March 2014 statutory declaration, she does not mention that her husband stepped in front of her to protect her from the attack or that they were targeting her specifically, or that this attack was linked to [Colleague A]. 

14. Additionally the applicant’s evidence about her attempts to engage the police after the car accident has changed, and grown in some respects, casting doubt on this aspect of her claims.  For example, in her March 2014 statutory declaration provided to the Department the applicant states that after the accident [in] October 2010 she was taken to hospital; although she asked for hospital records she was not given them; and she went to the police station the following day but was told they could not pursue the matter because they had not received documentation from the hospital.  However, at the Tribunal hearing the applicant’s account was different: that is she gave a statement to the police at the hospital and the next day her husband went to the police station, asked for a copy of the statement, and was told by the police that they did not have it.  When her husband returned to the hospital to enquire about the statement he was told the statement was in another name, not the applicant’s, leading them to believe [Colleague A] had taken the statement.  The Tribunal notes further that the applicant did not mention she believed [Colleague A] had somehow taken her police statement made at hospital after her accident in her earlier statutory declarations provided to the Department and first Tribunal.  

15. Second, there are inconsistencies about key matters such as the applicant’s last contact with [Colleague A], and last purported threats from her.   For instance, at hearing before the first Tribunal the applicant said [Colleague A] rang her once after the car accident, however, she told the current Tribunal at hearing (and in her March 2014 statutory declaration) that [Colleague A] rang her several times (and threatened her) after the accident.  Additionally her oral evidence at hearing about how long the purported threats continued changed during the course of the hearing: that is first she said the threats stopped when she returned to work after the car accident (after taking extended medical leave), then at a later stage said the threats continued right up until she left Egypt (in April 2013). 

16. The Tribunal also finds it far-fetched that [Colleague A] would orchestrate a car accident as claimed, and implausible that if she did in fact do so (and threatened to kill her), the applicant would return to work with her (after taking medical leave) as indicated at hearing.

17. Third, the applicant’s assertion before the current Tribunal that she was able to obtain [Colleague A’s] employment file (containing false employment records, among other things), and has kept a copy of that file in her apartment in Cairo for possible future use appears to be new.  She made no mention of the existence of this file in her March 2014 statutory declaration provided to the Department or in her February 2015 statutory declaration provided to the first Tribunal.  At hearing she said this was ‘maybe’ due to not being asked specifically about this by the delegate or the first Tribunal member.  Even if that was the case her failure to raise the existence of such a file casts doubts on her claims in this regard. 

18. Given these concerns, whilst the Tribunal accepts [Colleague A] may have been promoted above the applicant sometime in the past, it does not accept the applicant found out [Colleague A] falsified official documents to get promoted; that she obtained [Colleague A’s] employment file containing the false documents and has kept a copy of that file; that she confronted [Colleague A], told her she would lodge a complaint with the [relevant Government] Minister; that [Colleague A] orchestrated a car accident to thwart the applicant’s attempt to report her to the Minister in October 2010; that the applicant reported this to the police; or that [Colleague A] (and/or others linked to [Colleague A]) threatened the applicant after the accident.  

19. As the Tribunal does not accept such a file exists it does not accept she will pursue the matter on return. 

20. With regard to the applicant’s claims that her staff records were stolen, along with others, the Tribunal found her evidence in this respect muddled and inconsistent with information contained in documents provided evidencing the matter.  That is at hearing the applicant said she was passed up for the promotion – which ultimately went to [Colleague A] – in around 2008 and at that time discovered hers (and others) staff records had been stolen.  However in a letter from the [named local authority] dated [in] October 2010 provided to the Department it states that the employment file of the applicant was stolen from amongst other files held in the Archives department [in] October 2004, several years before.  Additionally in the translated copy of the police report submitted at [Police Station 2] against the employee provided to the Department, it indicates that an investigation into the stolen files was conducted and an archive employee was sentenced to [a term of] imprisonment and dismissed [in] December 2005.  Based on this evidence the Tribunal accepts the applicant’s employment file was stolen (along with others) in October 2004 and an employee was later convicted and dismissed from their job as a result.  It does not accept the applicant was passed over in a promotion by [Colleague A] for this reason – given the significant date disparities – or that [Colleague A] was responsible for stealing her file. 

21. The Tribunal has gone on to consider the applicant’s claim that she has been threatened by the mother of a former Muslim [client] – [Ms A] – at her [Agency] in Cairo who blames her for encouraging [Ms A] to convert to Christianity.  The applicant suspects [Colleague A], who is friends with [Ms A’s] mother, had encouraged her to do so.  She claims [Ms A’s] mother lodged a complaint with the [Agency] [Manager A], there was an internal investigation, and she was able to keep her job but was warned not to interact with [Ms A].  She claims she received threatening messages via a messaging app in Australia from [Ms A’s] mother. 

22. The Tribunal has several concerns with the applicant’s claims in this respect, for a number of reasons, including her failure to raise the claim initially with the Department.  At hearing she explained this was due to advice by her then agent to stick with the [Colleague A] story, and because she only received the threat from [Ms A’s] mother accusing her of converting [Ms A] to Christianity after the delegate’s interview.  Whilst that may have been the case there are other concerns the Tribunal has, including inconsistent evidence about this matter in some key respects.  For example, at hearing the applicant said she received a threatening [message] from [Ms A’s] mother, who accused her of converting [Ms A] to Christianity (at the urging of [Colleague A]).   However, in her February 2015 statutory declaration provided to the first Tribunal she stated to have received the threat from someone called [Ms B] on [the messaging app], who she describes as ‘the mother of another [client] and friend of [Ms A’s] mother’ – not [Ms A’s] mother as claimed at hearing.  

23. Given these concerns the Tribunal does not accept the applicant was accused of converting [Ms A] to Christianity; or that her mother reported her to the [Agency] [Manager A]; or that there was an internal investigation; or that she was threatened by [Ms A’s] mother (or [Ms B], or anyone linked to [Ms A’s] mother) in Australia. 

24. The Tribunal accepts the applicant [served Christian clients] at her [Agency] on occasion in the past as claimed.  However, it does not accept she was accused of encouraging Muslim [clients] including [Ms A] to convert or that she was threatened by their relatives and/or community members as a result.  It follows that the Tribunal does not accept the applicant was known as a Christian fanatic in her neighbourhood or broader community in Egypt as claimed. 

25. Accordingly the Tribunal finds the applicant does not face a real chance of serious harm from [Colleague A], from associates of [Colleague A], from [Ms A’s] mother, or anyone linked to [Ms A’s] mother, Muslim extremists, former neighbours, and/or community members on return to Egypt now or in the reasonably foreseeable future because of her dispute with [Colleague A], because she [discussed] Christianity in the past, because she was considered a ‘Christian fanatic’, or because she is blamed for encouraging now former [clients], including [Ms A], to convert from Islam to Christianity.  Her fears of persecution on these bases are not well founded.

    Fear of persecution as a (Coptic Christian) woman

26. The Tribunal has gone on to consider the applicant’s claims to have been sexually assaulted in Egypt in the past and to fear sexual assault (and other forms of discrimination, sexual harassment, and gender-based violence) on return, particularly as a Coptic Christian woman. 

27. In her submission to the Tribunal the representative submits that the applicant faces a well-founded fear of persecution in Egypt based on her membership of a particular social group of Coptic Christian women in Egypt, a fear that was heightened by the civil and political unrest following the January 2011 popular uprising.  She states that the applicant experienced sexual assault on three occasions in the street in Egypt in the past, because of her status as a Coptic Christian woman, and when she sought police help, they refused to report the sexual assault incident.  The applicant’s mental health deteriorated rapidly after these incidents and she has taken various medications for depression, stress and anxiety in Egypt, and has continued to see psychologists in Australia. 

1. Additionally it is submitted the applicant was targeted by Muslim extremists more so than her husband as a female and because she is easily identifiable as a Christian by not wearing a hijab and wearing a crucifix necklace. The representative argues further that the applicant’s status as an elderly Coptic Christian woman makes her at greater risk of attack.  Reference is made to country information from a variety of sources about the treatment of Coptic Christians in Egypt by Muslims, extremist Islamic groups, and the authorities, and the situation for women, and Coptic Christian women in Egypt, to contend that there is discrimination and harassment against Coptic Christian women, and they are susceptible to communal violence. 

2. The other main points the representative makes in her submission on this matter are:

   ·As the applicant was known as a Christian fanatic and extremist in the area where she lived and worked, she would be more easily targeted and susceptible to violence and attacks as a result of her religion, gender and age.

   ·The DFAT country information report on Egypt indicates (President) Sisi’s government’s strong emphasis on internal security has largely restored general law and order throughout Egypt and large-scale protests such as those experienced in 2011 and 2013 are very rare.  Also that most of Egypt, including Cairo, has low rates for serious or violent crimes, excluding violence against women (emphasis by the representative). 

   ·DFAT (and other country information) indicates the strong prevalence of rape, sexual harassment and other forms of gender-based violence in Egypt, and whilst there are improvements in the country’s legal framework, they are yet to see significant changes to the situation on the ground: prosecutions and sentences remain rare.

   ·Despite changes in political power in Egypt, social discrimination against women, and the alarming and perilous situation of sexual harassment is ongoing.  According to results about the ‘Economic costs of gender-based violence survey’ conducted in 2015 by UNFPA, Egypt ranks second in the world after Afghanistan in terms of the issue of sexual harassment.[7] 

   ·In the UNDP’s 2020 Human Development Report, it is stated that gender disparities are pronounced in Egypt, which is ranked 108 of 162 countries in the Gender Inequality Index.[8]

   [7] UNFPA Egypt, Gender-based violence, UNDP Egypt, Human Development Report 2020, 16 December 2020,

3. Additionally the representative submits that certain types of harm can affect some victims differently than others depending on personal attributes such as age or frailty: SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497. In the applicant’s case sexual harassment and unwanted physical contact can constitute serious harm, particularly in light of her particular vulnerabilities arising from her fragile mental and physical health, her age, and past experiences of sexual assault.

4. As noted, the applicant claims she was sexually assaulted on three occasions – in January, March and April 2013 – in Egypt, each time with her attackers purportedly verbally denigrating her religion.  She reported the last attack to the police (which also involved robbery of her handbag which contained cash and other items) and provided to the Department a translated copy of the police report, which confirms her report of being abused by her assailants as a Christian, who also tried (unsuccessfully) to snatch the gold chain with a cross on it from her neck.  She told the Tribunal that the Police Officer took down her statement but refused to mention the sexual assault.  She said she did not report the earlier incidents because the police stations were closed, or not operational due to the unrest at the time and also because she was close to the prosecution office on the third occasion. 

5. At hearing the applicant did not want to talk about these incidents, finding it too upsetting to do so.  Details of the alleged attacks are contained in earlier evidence provided to the Department and first Tribunal.  More generally she spoke about the poor treatment of women on the streets in Egypt, and risks for those not wearing a hijab of insults, and possibly being touched, by ‘fanatic Muslims’, as noted earlier. 

6. The Tribunal accepts the applicant’s claims to have been sexually assaulted in Egypt on three occasions in the period from January to April 2013, prior to leaving the country.  This claim has been consistently made from the Protection visa application stage to present.  Whilst the applicant’s reluctance to talk about the purported incidents before the current Tribunal is of some concern, this is unsurprising given the emotional difficulties in recalling such events, and the deterioration in her mental health after the incidents, which has been confirmed in the various psychological reports provided to the Department, first Tribunal, and current Tribunal.  Details about the incidents were set out in the applicant’s husband’s initial statutory declaration (dated 2013) provided to the Department, and elaborated to some extent in his and the applicant’s February 2015 statutory declarations provided to the first Tribunal, the information of which is generally consistent.  Further, information from third parties such as the applicant’s psychologist and psychiatrist have been provided confirming her self-reports of these incidents, and related psychological impacts. 

7. A translated copy of a police report related to the third incident in April 2013 has also been provided to the Department.  It fails to mention the alleged sexual assault – instead reading as a robbery (with religious slurs) – but the applicant (and her husband in his February 2015 statutory declaration) explained this is because the Police Officer refused to take down that aspect of her complaint.  Given country information (as detailed further below) indicates poor police action in respect to reports of sexual assault in Egypt, this is not surprising.  The Tribunal accepts the applicant was sexually assaulted in the incident in April 2013 as claimed despite this aspect not being recorded in the police report provided.

8. The applicant said she did not report the two earlier incidents because the police station was closed due to the unrest and because the April 2013 incident happened near the prosecution office.  This is plausible, given country information about the political unrest and security situation in Cairo at this time.  Specially that in 2013 large‑scale anti‑Christian violence occurred in Egypt in the wake of protests against Morsi’s (Muslim Brotherhood’s) presidency. Following protests, the military removed Morsi from power and reinstalled an interim military regime in July 2013.[9] DFAT reports that the general breakdown in law and order nationwide following the 2011 Revolution peaked in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools and private property, and people were killed in communal‑related killings. DFAT reports that most, but not all, of the incidents were marked by a slow police response.[10] Christian communities and individuals experienced mob violence and individual attacks, often fuelled by rumour and social media.

   [9] DFAT Country Information Report, Egypt, 17 June 2019 at 2.3, 2.4

   [10] DFAT Country Information Report, Egypt, 17 June 2019 at 3.23

9. In her oral evidence to the Tribunal the applicant said she suspects [Colleague A] was behind these attacks.  However, for reasons above the Tribunal does not accept that was the case.  It also does not accept the submission that the applicant was considered a fanatic Christian in her area due to [her occasional duties] at [her Agency], being suspected of encouraging Muslim [clients] to convert to Christianity, or any other reason and therefore rejects the applicant’s claim that she was targeted because she is seen as an influential ‘fundamentalist’ Christian due to her roles in the [Agency]. 

10. The Tribunal notes the motivations for these attacks are not entirely clear, and could have been multiple, including for financial gain.  They took place during a time when the security situation was poor in Cairo, and the related breakdown in law and order, as detailed above.  In such a context, it was not uncommon for robberies or other incidents to take on a religious overtone or for the incident to be used as an opportunity to denigrate someone’s religion and/or gender, which is what appears to have occurred in the applicant’s case.   

11. The Tribunal notes in her February 2015 statutory declaration provided to the first Tribunal the applicant states that after the sexual assault incident (it is unclear which one) she started receiving threatening phone calls.  Her husband also stated in his 2013 statutory declaration that his wife received many threats from Islamic extremists.   However the applicant did not mention this at hearing, instead claiming to have received threatening phone calls from private numbers who she suspects was from [Colleague A] or those linked to [Colleague A].  However for reasons set out earlier the Tribunal does not accept her claims in this regard.   

12. Given these findings about the applicant’s past experiences in Egypt the Tribunal has gone on to consider country information about the situation for women, and Coptic Christian women there, to determine whether her fears of persecution on return to Egypt as a Coptic Christian woman are well founded. 

13. DFAT in its most recent country information report on Egypt (released in mid-2019) note the considerable legal protections for women in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. The government’s National Strategy for the Empowerment of Egyptian Women (2017–2030) sets a number of concrete targets for political, economic and social empowerment for 2030, including aiming to eliminate sexual harassment and domestic violence entirely.[11] 

    [11] DFAT Country Information Report, Egypt 17 June 2019 at 3.75

14. However DFAT also states that societal, cultural, legislative, and religious barriers continue to place considerable limits on participation of women in Egyptian society; that the implementation of constitutional protections can be unpredictable, and frequently dependent on the individual discretion of police, prosecutors, or judges; and that human rights organisations have told DFAT that some judges, particularly in rural areas, allow their religious or cultural view of women to influence their findings. They state:

    This problem is exacerbated by the fact that the judiciary is almost entirely male – only 0.5 per cent of judges are women. The accountability of police is also an issue, both in terms of their capacity to enforce laws preventing violence and harassment of women and as perpetrators of such acts.[12]  

    [12] DFAT at 3.76

15. Additionally DFAT states that rape, sexual harassment and other forms of gender-based violence are all strongly prevalent; that sexual harassment is a frequent occurrence for women across the socio-economic spectrum; and domestic violence is prevalent and commonly accepted across religious communities and socio-economic levels.[13]  Whilst rape is a crime, rape within marriage is not a crime, and the legal definitions for rape and sexual assault are reportedly weak.  DFAT states that women’s rights activists estimate that tens of thousands of incidents of rape occur annually, very few which result in convictions.  Further, human rights observers report that the ‘authorities generally treat allegations of rape and sexual assault as a ‘social nuisance’ rather than a crime to be prosecuted, and rarely make serious attempts to prosecute those responsible for sex crimes’.[14] 

    [13] DFAT at 3.85

    [14] DFAT at 3.82

16. DFAT also notes a 2017 survey by the Thomson Reuters Foundation found Cairo – where the applicant is from – the world’s most dangerous megacity for women.[15]

    [15] DFAT at 3.81

17. With respect to sexual harassment, DFAT states:

    Sexual harassment is a frequent occurrence for women across the socio-economic spectrum. A 2013 UN Women study found 99.3 per cent of Egyptian women had experienced sexual harassment, while 91.5 per cent reported experiencing unwanted physical contact. The study found that most sexually assaulted women would not report the crime to the police or tell their families. Those who do make reports sometimes face retaliation from perpetrators or even their own families, who may blame them for provoking the assault or for bringing shame on the family. Sexual harassment was found to be particularly prevalent during mass street celebrations such as religious feasts, or political demonstrations. State officials and members of parliament have sometimes blamed victims of sexual violence because of their “revealing clothing’[16].

    [16] DFAT at 3.83

18. The DFAT report notes decree 50/2014 criminalised sexual harassment for the first time, providing for prison sentences of up to five years, and fines, and there have been instances in which authorities have successfully prosecuted perpetrators of sexual harassment.  However the report goes on to state that ‘…such prosecutions and sentences remain rare. Authorities have instead taken action against individuals and groups who have spoken out on the issue’.[17]

    [17] DFAT at 3.84

19. Overall, DFAT makes the following assessment about the situation for women in Egypt:

    DFAT assesses that the majority of Egyptian women, regardless or religion or socio-economic status, face societal discrimination in that long-standing traditional values and gender roles continue to restrict their participation in the community and the workforce. DFAT assesses that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence. Activists who criticise government failures in relation to gender violence are likely to face arrest and prosecution in relation to their activism.[18]

    [18] DFAT at 3.89

20. Such concerns are echoed in reports from other sources that confirm that sexual violence against women in Egypt remains a significant problem; that police routinely fail to investigate violence and harassment against women; and the authorities do not enforce the law prohibiting rape, as reported by the UK Home Office in a 2019 country information and guidance note about women in Egypt.[19] The U. S. Department of State in their report on human rights practices in Egypt for 2020 state that sexual harassment remained a serious problem; media and NGOs reported sexual harassment by police was also a problem, and the potential for further harassment further discouraged women from filing complaints; gender discrimination was widespread; and aspects of the law and traditional societal practices disadvantaged women in family, social, and economic life.  More broadly the report states that:

    Women faced widespread societal discrimination, threats to their physical security, and workplace bias in favor of men that hindered their social and economic advancement.[20]

    [19] UK Home Office, Country Policy and Information Note, Egypt: Women, June 2019 at 2.4.5 and 2.4.6

    [20] U.S. Department of State, ‘2020 Country Reports on Human Rights Practices, Egypt’, March 30, 2021

21. With respect to the treatment of Coptic Christian women DFAT states as follows:

    DFAT is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam. Such reports have occasionally led to increased tensions and clashes between Christian and Muslim communities, particularly when the alleged abductions involve family members of Christian priests. However, there is little evidence to suggest that forced conversions occur as a regular phenomenon. DFAT assesses that most religious conversions in Egypt occur either to enable a person to marry someone from another faith, or to access divorce.[21]

    [21] DFAT at 3.10

22. Such country information indicates that despite tougher measures to fight sexual and gender-based violence being enacted in Egypt in 2014, and examples of perpetrators being investigated and sentenced, sexual violence against women in Egypt remains a significant problem (among other problems). There is a disconnect between laws and reality and deep-seated cultural attitudes result in the practice of various forms of gender-based violence, for example, widely accepted as a social norm. 

23. In the applicant’s case she has experienced three incidents of sexual assault in the past (in the first half of 2013), directed at her on the street by strangers seemingly for no other reason than she was a woman, and possibly Christian, noting the attacks occurred during a time of heightened political unrest, including targeted attacks against Christians.  The Tribunal notes one of the attacks – the last one – occurred in the presence of her husband, showing a brashness of her attackers. 

24. Based on such country information and what it accepts of the applicant’s past experiences and profile, the Tribunal is satisfied the applicant faces a real chance of sexual harassment and/or assault (in the form of unwanted physical contact) as she has in the past on the basis of her membership of a particular social group of women in Egypt, by community members, should she return to Egypt.  It is satisfied that women in Egypt can constitute a particular social group for the purposes of the Convention. 

25. Whilst her Christian religion may add to her risk profile, based on DFAT’s advice that the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence, and the applicant’s past experiences of sexual assault, the Tribunal is satisfied she faces a real chance of serious harm from community members based on her membership of a particular social group of women alone, and that the essential and significant reason for the harmed fear is because of her gender. 

26. In making this assessment, the Tribunal has taken the applicant’s personal vulnerabilities and attributes into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts she was subject to three sexual assaults in early 2013 by strangers in the street who also verbally abused her religion and made lewd remarks and that these and other events contributed to a deterioration in her mental health. The Tribunal accepts, based on the various psychological and other medical reports provided including a report from [Psychiatrist A] dated 7 September 2021, that the applicant’s mental and emotional health remains fragile, and that she remains psychologically vulnerable due to these past experiences, and has ongoing treatment to help ease her symptoms, including for post-traumatic stress disorder (PTSD). At hearing, she was clearly upset when these matters were raised, despite the passage of time.

27. Additionally, the applicant is currently [age] years of age, is [recovering from her medical condition 1], has a compromised immune system, and has some other ongoing health issues, including [specified conditions] (as detailed in a letter from her [GP) dated 14 October 2021).  It is submitted that she also experiences side effects from various medications she takes: for example numbness, headaches, dizziness and insomnia caused by anti-depressants, sleeping tablets, anti-inflammatory and anti-anxiety medication.  At hearing, the applicant said the [medical] treatment affected her lungs and she has many other medical issues such as asthma.  Additionally last April she had surgery [for a specified condition].  These claims have been supported by the medical evidence provided and the Tribunal accepts her health history and current status as indicated at hearing.

1. Taking into account these particular vulnerabilities and personal attributes, the Tribunal is satisfied any future harm (such as unwanted physical contact) or even threats of harm the applicant may experience as a woman by community members in Cairo could amount to serious harm as contemplated in the Act, given her age, vulnerability, health problems including mental health issues, and previous experiences of being verbally abused and sexually assaulted.

2. Having regard to the applicant’s particular circumstances, and given these considerations (and taking into account the above country information), the Tribunal finds that if the applicant were to return to Egypt in the reasonably foreseeable future, she faces a real chance of serious harm from the community as a member of a particular social group of women as per s 91R(1)(b) of the Act. The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s gender as per s 91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s 91R(1)(c) in that it will be done to her selectively and intentionally.

3. The Tribunal has gone on to consider whether there is adequate state protection in the applicant’s case.  The harm feared by the applicant is from non-state agents, that is, members of the broader Egyptian community.  Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm.  Where the state is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the state is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the state is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].

4. Harm from non-state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the state is withheld or denied for a Convention reason.

5. In the applicant’s case it is submitted that she would be unable to seek adequate protection from the Egyptian authorities from the harm she fears as a (Coptic Christian) woman and such protection would be denied because of her gender and based on her Christian religion.  Country information from a range of sources is referenced to support the representative’s contention in this regard, which the Tribunal has had regard to. 

6. In considering the level of state protection available to the applicant the Tribunal notes DFAT’s advice as set out earlier including that perpetrators (of various forms of gender based violence including sexual assault) are rarely punished; that the authorities consider rape – for example – as more of a social nuisance rather than a crime to be punished; that some judges allow their cultural or religious views to influence their decision making in such matters; and sometimes there can be retaliation if women report cases. 

7. DFAT reports that the effectiveness of police in general is limited by a shortage of equipment, a lack of training, low pay and poor investigative skills, particularly in relation to investigating cases of sexual assault.  Although a new policing strategy commencing in May 2015, aimed at improving responses to violence against women, human rights groups report that ‘many women will not report crimes due to a lack of trust in the police’.[22]  DFAT states that the judiciary can be subject to community pressure to rule in accordance with dominant social and political norms, particularly in cases where religion is a factor. DFAT concludes that Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means in Egypt.[23]

   [22] DFAT at 5.7

   [23] DFAT at 3.36

8. Such assessments are reflected in the UK Home Office report on women in Egypt, including that laws protecting women against discrimination and violence are not always effective; undermined by poor enforcement and abuses by police themselves; that women are often unwilling to report abuses to the authorities due to social stigma and sometimes pressure from the police; that police are reportedly reluctant to investigate cases of violence against women; and that cultural and religious views can often impact police, prosecutors and judges when making a decision.[24]

   [24] UK Home Office, op cit, at 2.5.1

9. DFAT also states that in-country sources report that authorities in Egypt periodically detain ordinary citizens for social media comments made in relation to a wide range of issues, including gender-based violence.[25]

   [25] DFAT at 3.72

10. Based on such country information, and the fact the police failed to detail the sexual assault on the applicant in April 2013 despite reporting other aspects of the attack, the Tribunal is not satisfied that the level of protection available to the applicant from the Egyptian authorities is adequate and therefore does not meet the level of protection which citizens are entitled to expect according to international standards as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

11. With respect to whether or not it would be reasonable given the applicant’s circumstances for her relocate to avoid the harm she fears as a (Coptic Christian) woman from community members in Cairo, the representative submits it is not, given safety concerns throughout the country for Coptic Christian women.  Also the applicant’s mental and physical health conditions make her particularly vulnerable, it is submitted.   

12. The applicant fears persecution from the community as a (Coptic Christian) woman and DFAT’s advice is that women in Egypt face a high risk of gender-based violence, including sexual assault and domestic violence, with no geographical limits indicated.  Therefore, the Tribunal is satisfied that the real chance the applicant will face serious harm if she returns to Egypt applies to the whole country. 

13. In addition (and separately), the Tribunal finds that relocation would not be reasonable in the applicant’s case because she would be returning to a country where she has experienced sexual assault before and because she has and to some degree continues to experience symptoms related to PTSD, anxiety and depression and other traumatic experiences in Egypt. 

14. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution from the community if she returns to Egypt in the reasonably foreseeable future, based on her membership of a particular social group of women in Egypt, as someone who has been the subject of sexual assaults in the past and experiences related mental health issues.  It is satisfied her risk profile may be heightened as an easily identifiable Coptic Christian woman. 

100.   Given these findings, it is not necessary for the Tribunal to consider the other grounds and matters advanced.

101. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

DECISIONS

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

103.   The Tribunal affirms the decision not to grant the second named applicant a Protection visa.

Nicole Burns
Member