1817806 (Refugee)

1817806 (Refugee) [2019] AATA 5836 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817806
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Shahyar Roushan
DATE:30 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 30 April 2019 at 12:02pm
CATCHWORDS

REFUGEE – cancellation – protection visa – Egypt – ground for cancellation – incorrect information in visa application – claimed fear of harm – religion – Coptic Christian – family conflict with Muslim neighbours – threats from members of the Muslim Brotherhood – voluntary return to Egypt – ex-husband’s ill health – credibility concerns – consideration of discretion – basis of visa grant – Coptic Christian woman at risk of harm – specific claims not considered – non-refoulement obligations – particular social group – single, Coptic Christian women in Egypt – no close relatives or support – outspoken – high risk of gender based discrimination and violence – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
Background
The applicants are mother and daughter.
The first named applicant (the applicant) is a single [age]-year-old national of Egypt and a Coptic Christian. She separated from her husband in Egypt in February 2006. [In] February 2013, the applicant travelled to Australia with her daughter, the second named applicant, [Applicant 2]. At the time of entry, they both held visitor visas. The applicant’s mother and two siblings reside in Australia. She also has a son, who resides in the [Continent 1].
On 6 March 2013, the applicant lodged an application for a protection visa. [Applicant 2] was listed as a dependent on the application. On 17 October 2013, the applicant and her daughter were granted protection visas.
On 18 June 2018, a delegate of the Minister cancelled the protection visas on the basis that the applicant had provided incorrect information in connection with her application for a protection visa.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. [Applicant 2’s] visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Protection visa application
In her protection visa application form 866C, in response to questions 43-48, the applicant referred to an attached statutory declaration, dated 5 March 2013, provided in support of her application. The applicant stated the following in her statutory declaration:
1.     I was born in Sohag, Egypt.
2.     …
3.     My addresses in Egypt before I arrived in Australia were [Address 1] and [Address 2] respectively.
4.     I had two places of residence in Egypt as one address was used primarily for [work purposes] whilst the other address was used mainly used for [residential purposes].
5.     I came to Australia on a [temporary] visa [in] February 2013. This is my second time in Australia. I first came to Australia on a [temporary] visa in January 2001 and stayed in Australia for [number] month.
6. I am [age] years old and married to [Mr A] since [1986]. I have 2 children, namely our son [born on date] and our daughter [Applicant 2] [born on date]
7.     I currently live with [Applicant 2] as my husband and I have been separated since February 2006 and my son is based in the [Continent 1].
8.     I want to flee Egypt and come to Australia to avoid the danger that I am facing from the Muslim Brotherhood group.
9.     I decided to apply for a protection visa and live in Australia permanently because my life is in danger for reasons that I will state below.
MY COPTIC CHRISTIAN IDENTITY
10. I was born and raised a practicing Coptic Orthodox Christian, as were all members of my family. We are active members of [a number of churches in] [District 1], Cairo. The rest of my family are also active in these churches.
11. I attend services at these two churches a [few] times a week, and sometimes every day of the week. The amount of days I attend services at church depends on the needs of the church.
12. I attend mass at least twice a [week]. I serve the elderly and poor people by supplying them with food and clothing, as well as providing them other forms of supportive assistance such as escorting them when they have to see doctors or go to the hospital, and driving them to locations where they undertake leisure activities such as visiting parks. I also drive them back and forth from church services. I also help the church raise funds, by conducting activities such as charity drives. The money raised is used to help orphan children with food and accommodation.
13. [Applicant 2] attends mass at least twice a week as [well]. She is a Sunday school servant for young children aged between [age] years old. She also sings in the church choir at [Church], [District 1], Cairo and helps manage church activities such as plays and sporting teams.
EL-THAR ('REVENGE')
14. I applied for a protection visa because my life is under serious threat by members of the Muslim Brotherhood.
15. It all began [in] 2011 when violence broke out in a village called [Village 1] [a distance] away from where I lived in Sohag between members of my husband's family and their Muslim neighbours.
16. This incident involved my husband's [Cousin 1], [Cousin 2], [Cousin 3], [Cousin 4] and [Cousin 5] (collectively the [Family A], and other relatives who all live in [Village 1]. Their Muslim neighbours are the brothers [Mr B] and [Mr C] (collectively [Family B]).
17. The matter started when [Cousin 1] had started to build a wall in front of his home by two meters. He informed the neighbours, being the [Family B], saying that it does not hinder traffic in the street because it is consistent with the line of the rest of the house and did not take anything from the street view.
18. His neighbour, [Mr B] objected to [Cousin 1] building the wall and gave [Cousin 1] two hours to demolish it or else something bad will happen to him. He had made a number of threats to [Cousin 1] in the heat of the argument. [Cousin 1] went to report to [a] Police Station to report this, but the police did not move.
19. The [Family B] then gathered a group of Muslims, from the Muslim Brotherhood, and Muslim butchers from the village and went to [Cousin 1] house to fight with him. There was a large altercation on this day.
20. During the clash, [Mr C] was wounded and taken to the hospital. Because of this, [Mr B] and the rest of the Muslim group with him burned [a number] of the houses in the village that belonged to relatives of the [Family A]. They looted shops owned by Copts, including a supermarket and a church named [name withheld]."
21. At approximately four o'clock pm that day came news that [Mr C] had died in hospital. At around six o'clock pm, [Mr B] and his followers went to [Cousin 2] and [Cousin 3’s] houses (they each lived in apartments separated by one level in the same apartment building which is [a number of] kilometres away from [Cousin 1] house).
22. [Mr B] and the other members of the Muslim Brotherhood broke down the door of [Cousin 2] house. They then slaughtered [Cousin 2] by beheading him while he was sleeping on the bed. After that they went to [Cousin 3’s] house one level up from [Cousin 2’s] flat and slaughtered him too. When [Cousin 3’s] son '[Cousin 5]' went to protect his father, they beat him on the head and he fell to the ground and lost consciousness.
23. The [Family B] clashed with the [Family A] and there has been a very long running conflict since this period, wherein the [Family B] want revenge in the traditional Upper Egyptian fashion.
24. I know all this because I heard the news on the same day from my brother in [law], who called me and asked me to take care of myself and [Applicant 2] as he and our other relatives do not know what [Mr B] and his group will do next.
25. These same men threatened other relatives of my husband's living in Al [Village 1], such as my husband's brothers [and] my husband's sister , [who] all received threats in the form of phone calls and some were harassed and beaten up since this incident. They also injured, bashed or beat up more than 20 of Copts my husband's relatives since then. I know all of this through my 2 brothers in law living in [Village 1].
26. …
PERSECUTION
27. The threats against the [Family A] and [Family C] eventually reached me and my own family [a few] months ago, in about November 2012.
SOHAG
28. The threats began in Sohag, where I own and manage [a business] located [Sohag]. Attached and marked Annexure "A" is the license of my [business].
29. [In] November 2012, strange men called me on my mobile in the middle of the night and threatened to inflict harm on me and my family. They called several more times over about a one month period quite sporadically.
30. For each call, the anonymous caller will say things to me like: "I will kill you and your family as revenge but before I do that I will rape you and your daughter!" Other times, the caller would say, "I will burn you alive and your house too!" There was also a time when the caller told me, "Your family has caused us to lose one of our Muslim family and 100 of your family will not be enough compensation for this!"
31. I became terrified from the very start of receiving these threatening phone calls. Towards the end of the month, there were about five threatening telephone calls in total, and I began to think that they were outside my house watching me and my daughter. We lived by ourselves, and I feared that if they knew this, they would be fearless in attacking us as my husband and I are separated.
32. I began to lose sleep over this and could not eat. I was crying almost every day, praying and asking for help from my other relatives but they were also very worried about what would happen to them if they got involved.
33. [In] November to the Sohag police station with [Applicant 2] to report them. The police officer told me that they will not even investigate the matter, because no one was actually hurt, and that no crime had happened. I told the police that they were threatening to kill me and my daughter, and they did not even care about me.
34. I changed my mobile numbers several times throughout this period, and I must have gone through about 3 sim cards. I used to receive about 30 calls per day because I was managing my [business] by phone, and the staff would call me constantly, or suppliers and clients would contact me.
35. I put safety precautions in place, and told my staff at the [business] that they are not to reveal my numbers to anybody except bona fide clients, or suppliers.
36. I discovered [in] November that my staff at the [business], specifically the manager, [was] tricked by a man pretending to be a customer with an emergency who need to contact me urgently. This was how the callers were able to find out my mobile numbers.
37. I decided to become more hands off in the business, because there was no way I could guarantee the safety of my daughter and I if I was going to be continually contacted for the sake of my business all the time. I needed to get away from all that was happening, and try to remain hidden for a while.
38. I appointed [the] manager with the ability to run the business without me. I felt that because of the emergency situation I was in, he could manage the [business] and the suppliers and clients without me.
39. I changed my number again and gave it only to my family and I took precautions to make sure no one found out about it.
40. One day, when I was at home with my daughter, I received a call from [the manager]. The [business] had received a death threat by mail, [in] November 2012. They letter said, "We will kill you and your daughter. We will get you wherever you are!"
41. This worried me greatly as it was an escalation of the violence that they were threatening against me. They were no longer happy just to call me, and seeing that they could not call me, they decided to persist and send a threatening letter to me. I was very worried that the people that were out to get me would not relent.
42. This worsened my fear. I felt that I was losing everything and that these men can get me anytime they wanted.
43. It was a very terrifying experience for me. I went into a deep depression because of it and have been on anti-depressant medication since then. I began to suffer hypertension, stomach cramps, anxiety disorder and loss of appetite. There are times when my blood pressure shoots up and I feel my whole face go numb.
44. I could not get out of my house anymore. I had to ask my neighbours to shop for my groceries for me. I could not even open my windows for fear of someone seeing that I was inside. I was convinced that these same Muslim men were outside my house, watching my movements. I also stopped going to church completely. I could not go on performing my usual church services.
45. I phoned the police station to let them know that I had received a letter, and they told me that no one was hurt, and there is nothing for them to do. I had known that the police were very ineffective after the Egyptian revolution, especially in situations that involved Muslims persecuting Christians, and the police response reaffirmed this for me. I knew that if the police wanted to investigate, they would, and they would do so if there were no Christians involved.
46. This was a big turning point for me. Sohag is a small town and I felt that I would not be safe unless I left Sohag.
47. It scared me that the men knew my and my daughter's movements.
48. I came to believe that [Mr B] and the members of the Muslim Brotherhood are helping each other in [Mr B’s] fight with my husband's relatives because as extremist Muslims they all pray together and help each other out.
49. I was so frightened that I finally had to escape to another place.
[Town 1], ALEXANDRIA
50. I was desperate for some other place to escape to and went to Alexandria with [Applicant 2]. At the time my mother went with us. She had come from Australia to support me emotionally and financially throughout this ordeal.
51. All 3 of us went to Alexandria and stayed at an apartment that my mother owned there. We stayed there for a month and a half. Most of December 2012 was quiet and without any incident or threats being made against us.
52. [In] January 2013, we had no choice but to leave the house one day to do some [shopping]. [Applicant 2] and I went together despite the risk and we left the house in the morning [and] started walking towards [a location] at the end of the street along [Town 1], which is about [a few] minutes' walk.
53. As we were walking, [Applicant 2] saw that there was a man that looked like he was following us. He was a tall and thin man who looked like a member of the Muslim Brotherhood because he had a long beard, shaven moustache, and wearing a galabeya.
54. As he seemed to be following us, we started to walk faster and faster, and we noticed that he was following us. We started to run, because we wanted to get to the crowded shopping centre where there were bound to be more people and he began running after us.
55. We were really terrified, overcome by the fear. We were screaming and asking people around us for help. By this time we were inside a shop. People started to surround us because [Applicant 2] had fallen on the floor. The people around us in the [building] tried to help by giving [Applicant 2] water or something sweet to revive her. The man who was after us ran away when he saw that the people around us were helping.
56. We stayed in the [building] for [a few] hours to make sure that [Applicant 2] was able to walk again and then we went to [a] police station.
57. We were asked questions of whether we knew who was after us. But when we mentioned the fight between the families, they said they were not going to investigate further. They refused to assist us, and they did not give us any reasons why. I think they knew that Upper Egyptian revenge attacks are known to be very violent and long term, and they did not want to get involved.
58. The fear remained with us. We felt that the man who came after us was waiting for us to come out of our house and knew us. It was clear he was targeting us.
59. After this incident, we stayed at the house and could not go out at all. We asked [the] building attendant and our neighbours to help us but they were reluctant to be involved with us. They would just tell us to leave Alexandria and go to [District 2] where there were more Coptics and we could be safe. My grandmother owns an apartment there in [District 2].
[DISTRICT 2], CAIRO
60. To escape, we moved to [District 2] [in] January to be surrounded by other Coptic Christians and to feel safe.
61. I felt strongly that there were people that were out to attack us were very well connected — even to the police - such that we felt it was dangerous to even go to the police.
62. It was at this time that I became convinced I had no other place to go and will have to leave Egypt. I booked plane tickets for all of us but, since I wanted to mislead whoever was after us, I actually re-booked and flew out of Egypt a week later. I was getting very paranoid about everyone around me, and I felt that at anytime I would collapse from a heart attack. Attached and marked Annexure "B" is the itinerary for my flight to Australia which was booked a week earlier that our actual flight.
63. All in all we only stayed in [District 2] for [a few] weeks.
64. We had to leave everything behind — all our possessions, clothes, money, jewellery, everything.
65. Based upon the recent events that are happening in Egypt, my own experiences, and those of my friends, it is clear that I cannot obtain any protection or assistance from the Egyptian government or its police force.
66. The police have not taken me seriously or refused to assist me. In fact, I am beginning to fear that the men persecuting me are connected to the police such that the police will only make my situation more difficult
67. Because I know that the police will only either assist the Muslim Brotherhood in their persecution of Christians like me, or at the very least refuse to help them. I definitely cannot obtain the necessary government protection to preserve my safety.
68. I have tried relocating several times to escape those that want to kill me and [Applicant 2]. I am now convinced that it is only a matter of time before I am harmed, abducted and/or killed by members of the Muslim Brotherhood.
69. The Muslim Brotherhood is in power and it is very easy for its members, such as [Mr B], to find me and take revenge upon me as a member of my husband's family wherever I go in Egypt. Their network and connections with the Egyptian government are such that they can easily acquire a thorough knowledge of my personal details, daily routines, habits, activities and whereabouts at any given time.
70. I will never be safe as members of the Muslim Brotherhood are everywhere and they can easily track me and kill me if they wished to. They operate like a network, and are now in government positions, and they will find me to get their revenge in the end.

On 17 October 2013, a delegate of the Minister accepted the applicant’s claims and recommended that the applicant is a person in respect of whom Australia has protection obligations.
The cancellation
The notice
On 5 March 2018, in accordance with s.107 of the Act, the applicant was issued with a Notice of Intention to Consider Cancellation under Section 109 (NOICC), which replaces a previous NOICC issued on 20 November 2017. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.
The NOICC set out the applicant’s responses to questions 42-48 of her form 866C and her statutory declaration of 5 March 2013. The particulars of the non-compliance were in relation to the applicant and her daughter’s voluntary return to Egypt, where they sought protection from, one month after their protection visas were granted.
According to the NOICC, departmental records indicated that the applicant and her daughter departed Australia for Egypt [in] November 2013, remaining in that country for eight months. Departmental records also indicated that the applicant and her daughter returned to Egypt [in] October 2014, remaining [for a few] weeks.
In addition, the NOICC notified the applicant that her son-in-law, [Mr D], in an interview held on 7 September 2016 with the Department in connection with a Combined Partner visa application, sponsored by [Applicant 2], stated that the applicant and her daughter lived in [District 1] from 2011 until their departure for Australia in 2013. He also stated that the applicant’s husband was in prison and that the applicant and her daughter had moved from Sohag to Cairo when her daughter was in her mid-teens.
On the basis of the information identified, the delegate considered the applicant’s claims for protection to be incorrect because the applicant and her daughter had not encountered harm or impediment on their returns to Egypt one month after their protection visas were granted. The delegate also considered the applicant’s claim that she moved from Sohag to Alexandria and [District 2] during 2011 and 2013 to avoid the Muslim Brotherhood to be incorrect based on [Mr D’s] oral evidence.
The applicant’s response
In response to the NOICC issued on 20 November 2017, the applicant provided the following documents:
·     Two medical attendance certificates, [both dated sometime in] December 2017, certifying that the applicant is the carer of [Ms E] and had attended the hospital on the dates of the certificates.
·     A letter from [Rev E], Parish Priest at [a] Church, dated 1 December 2017.
·     A statement from [Mr D], the applicant’s son-in-law, dated 5 December 2017.
·     A letter from [Mr F], dated 2 December 2017, confirming the applicants had stayed in two of his properties in Giza in 2013 and 2014.
·     A letter from [Mr G], dated 3 December 2017, confirming the applicant had asked him if she could stay in his flat in [City 1], Egypt for a while during her visit to Egypt. [Mr G] said he had arranged for someone to give the applicant the keys to his flat and she had stayed for a period of time, although he could not remember for how long.
·     A statutory declaration, declared by the applicant on 7 December 2017.
In response to the NOICC issued on 5 March 2018, the applicant’s representative provided a submission, dated 16 March 2018, essentially asserting that the applicant had provided correct information in her protection visa application, and that the Department’s NOICC included assumptions rather than solid evidence upon which the cancellation can be based. Under the cover of the submission, the following documents were provided:
·     A letter from [Mr F], dated 2 December 2017, confirming the applicants had stayed in two of his properties in Egypt in 2013 and 2014.
·     A letter from [Mr G], dated 3 December 2017, confirming the applicants had stayed in his flat in Egypt in 2013 and 2014.
·     A letter from [Dr H], dated 14 March 2018, referring to [Ms E’s] medical conditions.
·     A statement from the applicant’s son-in-law, [Mr D], dated 5 December 2017, stating that his evidence at the partner visa interview in relation to [Applicant 2’s] residence in [District 1] does not exclude the fact that the applicant had also resided in Sohag. He said he had answered the question of where [Applicant 2] had resided in the context of their relationship. He was not asked direct questions about Sohag and he felt it was irrelevant to his partner visa application to disclose this information. He stated that [Applicant 2] would go back to Sohag very frequently on weekends or during breaks or periods of leave. He had told the Department that he had travelled to the [Country 2] for six months during that period and that he was aware that [Applicant 2] and her mother moved places a few times because ‘they were in danger’ before leaving for Australia. During 2011 and 2013, he and [Applicant 2] were ‘just getting to know each other’ and they did not know every detail about each other. However, he was aware the applicant had spent a considerable time in Sohag because of her business and she moved between Sohag and [District 1] due to her daughter’s studies.
·     A letter from [Rev E], Parish Priest at [a] Church, dated 1 December 2017, stating that the applicant had told him that she and her daughter lived in Sohag and Cairo due to her business being located in Sohag and her daughter studying at a university in Cairo. He also stated that he ‘became aware’ from both the applicant and her daughter that the purpose of their travel back to Egypt was due to the applicant’s daughter’s desire to see her sick father and the applicant could not let her daughter travel alone. The applicant told [Rev E] she had to move addresses often while they were in Egypt as they were afraid of ‘perpetrators’ knowing their whereabouts.
The applicant also submitted a statutory declaration, dated 16 March 2018, containing the same information as in her statutory declaration of 7 December 2017. In her statutory declaration, the applicant essentially reiterated the information contained in [Mr D’s] statement of 5 December 2017. She stated that she disagreed with everything that is stated in the NOICC and provided the following additional information:
Her protection case was based on a very difficult situation which started in 2012. Her family’s situation was reported in newspapers and TV, which was ‘very dangerous and defamatory’ to her.
She had disclosed to the Department that she lived in two locations.[1] She bought a flat in Cairo in 2002 and they used to spend time there in summer holidays or weekends. Her daughter moved to Cairo [for] her university studies and she used to return to the family home in Sohag during university holidays. The applicant would also visit her daughter often in Cairo. Her daughter moved back to Sohag in October 2012 after completing her degree.
[1] Department file [file deleted], Folio 54, in response to question 35 ‘previous addresses’, the applicant stated she resided in [Address 1] from [1961] to [2013] and [Address 2], from [2002] and [2013].
Since ‘the hostile living situation’ in Egypt started in November 2012, she and her daughter travelled from Sohag to Alexandria and then to [District 2]. Her son-in-law was residing in the [Country 2] from April to September 2012. When she asked her son-in-law why he had not told the Department that [Applicant 2] often travelled back to Sohag during university break and that she had moved back to Sohag in 2012, he answered he had told the Department where he met [Applicant 2] first and where she was mainly living when he used to see her. He felt that it was usual for her to go back to Sohag and he was not being asked direct questions about Sohag.
She travelled back to Egypt due to an emergency as her ex-husband had a very serious illness. She could not let her daughter to travel to Egypt alone, so she accompanied her. The trip was emotionally very stressful and they had to live in three different locations during their period of stay to ensure their safety. She asked her cousin, [Mr G], who resides in [another country], for the key to his flat in Cairo where she stayed for a period of time. They then moved to live with her friend [Mr F], who has a villa and a flat in Giza. They stayed at these two properties. They were moving between the three properties and did not appear in the streets at all. They had no dealings with anyone, did not catch public transport or walk on the streets and did not inform their extended family and any friends they were in Egypt to avoid anyone finding out they were in the country.
She was in constant fear while in Egypt and had been treated for her depressive and post traumatic symptoms in Australia. She cannot return to Egypt and live in hiding or live with fear and anxiety.
She has become the carer for her elderly mother who lives with her in Australia. Her mother had [a medical condition] when she found out about the Department’s intention to cancel her visa and she was admitted to hospital for a procedure.
She has started training and studying for a [course] and will graduate [specified year].
Her statements were true and accurate and she had no intention to provide false information.
ITOA
The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant and, on 22 February 2018, found that Australia does not have non-refoulement obligations to her.
The delegate’s decision
On 18 June 2018, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found the applicant’s explanation for the discrepancies in the information stated in the NOICC to lack credibility. The delegate found that the applicant had provided incorrect information in her application for a protection visa.
Application for review
The applicant applied to this Tribunal for a review of the delegate’s decision. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.
Pre-hearing submissions
On 8 November 2018, the applicant submitted an undated statutory declaration in support of the review application. In her statutory declaration the applicant provided the following information:
1.       I arrived in Australia on [February] 2013, I was granted Permanent Residency through my protection visa on [date]. My case was covered by [some] Media and we attached all this evidence in my protection claim.
2.       [In] 2013 I received a phone call from my cousin in Egypt advising us that my ex husband was seriously ill with [a medical condition] that he was in Jail.
3.       I have been separated from husband since February 2006 and there was no communication with my x-husband since our separation.
4.       I did not know he was in jail until we received the call on [in] October 2013 notifying my daughter and myself that he wanted to see our daughter.
5.       My son, who lives in [Country 3], also confirmed this information and that his father's case was critical. My son found this out through his [uncle], who lived in [Country 4] .
6.       [Applicant 2], my daughter was in very bad condition when she found out this news.
7.       I don't know exactly when he entered Jail, however, when I went to Egypt, I found out he was there for a few years before we went, but I don't know exactly when.
8.       I also found out that the reason for his incarceration is that [in Occupation 1] he sold [goods illegally]. As far as I found out, the [goods] was registered overseas, but not in Egypt, I don't know exact details though.
9.       On 28 October 2013 we applied to the immigration Department asking for permission to travel for three months to accompany my daughter who wishes to see her sick father.
10.      We received the permission to travel [in] November 2013 till [February] 2013.
11.      Accordingly, due to the urgency of the situation, we travelled to Egypt on     [November] 2013.
12.      On 9 January 2014 we asked for extension to stay for 3-5 months more due to the latest health status of my ex-husband. We received approval to stay for requested period.
13.      We obtained a medical certificate to state his health status on [February] 2014.
14.      When we returned to [Australia] [in] July 2014, he was still very ill.
15.      We requested another permission to travel [in] October 2014 as my x-husband's health status deteriorated and they were considering doing an operation where they would remove a part [of an organ].
16.      We applied for another permission to travel and we received the approval to travel [in] October 2014 to [November] 2014.
17.      Before we even arrived to Egypt, we made very thorough precautions so as to avoid any danger in Egypt.
18.      I called my cousin and as my husband was in a hospital as a prisoner, and hence we couldn't visit him without permission of the visit being granted.
19.      My cousin could not get the permission on our behalf, as the lawyers and the jail notified him that the person requiring the visitation rights must apply personally.
20.      Therefore, he notified us that we must apply for the permission to visit him in the hospital as soon as we arrive to Egypt, but we must obtain this permission from the actual    jail permission office and take the permission with us to the hospital.
21.      At the same time, I called my cousin in the [Country 5, City 2], and asked if we can stay in his home in [October]. I thought of staying there as it was far from where we had encountered the persecution when we lived in Egypt and it is far enough for us to be hiding there. Of course my cousin agreed, as he knew our circumstances and he knew that I could not be in any area in Egypt publicly.
22.      I also took an extra precaution, as I was too afraid to stay in the one place for too long, in case I get recognised, hence I called a family friend, [Mr F], who has [a number of] units in [City 3], south of Giza and another unit in Giza itself, so I could move between the [units].
23.      As soon as we arrived, we went to the jail permission office to obtain the permission for myself and [Applicant 2]. We managed to obtain it and we indeed visited him at the specified visitation days, which were only once every fortnight.
24.      He was going to the hospital to do [medical treatment] every week and returning to jail a few days after his session. However, they only allowed us to visit once a fortnight not every week in the hospital.
25.      Other than visiting my x-husband with my daughter, we did not leave the house. We were very careful not to be seen in the street. We did not go to a church, or go to any extended family, or visit any friend s, or even go shopping, as we were too terrified.
26.      What happened to us in Egypt was terrifying and we were living with extreme caution not to be seen or recognised, or for our names to be known, as our case received a lot of media attention. We were literally staying inside the house, unless we were visiting him.
27.      Only very few people knew of our visit to Egypt, and would come to see us. This included my cousin and [Mr D], [Applicant 2]'s husband (at that time he was her fiancé to be).
28.      [Mr D] and [Applicant 2] had already been in communication together and hence [Applicant 2] had told him about our visit to Egypt.
29.      The reason for the extended period of time we stayed in Egypt on our first visit, and the extension we requested, is due to the limited number of visitations we were allowed and that his health condition was unstable.
30.      When we returned, his health further deteriorated and they considering doing an operation to remove part of [an organ]. This operation was going to place his life at risk, and hence [Applicant 2] insisted that she goes to Egypt again to be besides him.
31.      When we went the second time, his health was so poor that they were unable to operate on him, hence we stayed only [a number of] days and we returned to Sydney, when we were sure that no operation was occurring.
32.      It was during these [visit] that [Applicant 2] and [Mr D] took advantage of the fact that they were there face to face to get informally engaged (It was basically [Mr D] giving [Applicant 2] a ring). It is very unfair and untrue for the department to say that the purpose of the visit was the engagement. This does not even make sense, as [Mr D] could have easily come to Australia if they were planning for an engagement, so they could celebrate with the rest of our   family and friends who are all in Australia, as we hardly have any family and no friends at all left in Egypt.
33.      [Applicant 2] and [Mr D] were in communications long before this time, and they had loved each other before this time, and hence [Applicant 2] told him that we were coming to Egypt, although we had told very limited people.
34.      This engagement that occurred was not pre-planned and was not at all a formal engagement, as stated by the Department in their decision.
35.      The Department wrote that [Mr D] stated this was the date of their formal engagement, however, [Mr D] clearly stated to [Applicant 2] and I after the refusal that he did not state this at all. He just stated that this was their informal engagement, not formal. The department flawed in this statement.
36.      The Department cancelled my visa based on information given to them by [Mr D], during his interview with the embassy about his partner visa. I find this appalling, as the Department did not reasonably consider that [Applicant 2] may have told [Mr D] only limited information about her father's situation, full information of the protection claims, and about her life prior to meeting him.
37.      It is not reasonable to expect that a fiancé or any partner would have to tell all the information about her prior life to her partner.
38.      The Department failed to consider that maybe what was stated by [Mr D] was his way of confirming his relationship with [Applicant 2], and it maybe all the information he knew from [Applicant 2], which    as not all the facts.
39.      Neither I or [Applicant 2] are obliged to tell anyone all the facts about what occurred to us in Egypt, as this case is very sensitive for us, and has caused us many psychological issues just by remembering these incidents.
40.      During [Mr D]'s interview, he was trying to prove his relationship with [Applicant 2], he did not mention all the places we lived, or our relocations, as he wasn't asked these questions specifically and also he was in [Country 2] for six months around this time, hence he did not know much detail.
41.      I cannot imagine why the Department would cancel a person's permanent residency based on someone else's statements, which do not even contradict our claims. His statements stated where he met [Applicant 2], the date of their engagement and how and when to get to meet her. All the information given by [Mr D] did not contradict any of our claims; rather, it just didn't include all the details which our claims included, which is natural.
42.      The stress we have suffered and the psychological effect of the department's cancellation decision, which is based on unwarranted, unreasonable and pure assumptions, has caused us great unfairness and subjected us to grave injustice.
43.      As a permanent resident of Australia, I expected fairness in any procedures taken by a government department, reasonableness in any legal decisions taken and factual justifications, not assumptions.
44.      [Applicant 2] travelled to [Country 7] in October 2017 to serve in the church there, as she was very emotional about being separated from [Mr D]. When she heard the bad news about her husband's visa to Australia, she had a very big fight with m and she was extremely bitter with me, as she didn't like to return to Australia knowing that her husband can't come to Australia, and at the same time she knew she couldn't go back to Egypt as she could lose her life. She felt very trapped and she bought her anger all out on me. Since this time we have not been talking and [Applicant 2] hasn't returned back to Australia. I assume that she is in between [Country 6] and [Continent 1] as she can meet her husband in any of these countries.
45.      It is a sad story, caused by an un-justice decision by the Australian department of Immigration who rejected [Mr D]'s request for a partner visa, to enable him to live with his wife in Australia, despite the department being sure that [Applicant 2] has married [Mr D] in Australia.
46.      I have put evidence before that mum is totally dependent on me, she cannot live without me now. Since hearing of the visa cancellation, her health has deteriorated significantly. I am extremely fearful for her health deteriorating any further. She cannot handle such a decision and she does not know how to deal with it. She collapsed when she found out about the visa refusal.
47.      On one side, the decision of cancelling our visa could kill my mum, as she is very attached me to me and I am a carer for her in her old age since I came to Australia, and on the other hand my relationship with my daughter has been damaged severely.
48.      Furthermore, [Applicant 2’s] life with her husband is not like a normal relationship of married people living in the same country safely and happily.
49.      The situation in Egypt is completely out of control, as every day we are hearing about Fanatics and extremist Muslims killing Christian people.
50.      On the 2nd day of this month, 11 Copts have been killed and many injured when they were   on their way to the monastery.
51.      Normal Copts get targeted and persecuted in Egypt, and if I return, I would suffer a much more severe persecution as our case was well known in Egypt and attracted a lot of media attention.
52.      I will not be able to live like any other citizen, where I can have a national identity card with my name fearlessly, I will not be able to have access to the usual everyday services like mobile phones, banking, a job or even access to any public facility, in fear of being targeted by extremists should they know of my return to Egypt. I will not be able to go to church, serve publicly and attend the masses as I do here so often, due to the fear and the real risk that will be placed on me. I will not be able to practice my religion, which is the only thing that is keeping me strong. My faith and my connection with the church is the only method I have been coping with all the very harsh and difficult situations that I have faced during my life. To strip me of my right to practice my religion    would be stripping me of my life.
53.      There are millions and millions of extremists in Egypt, scattered across the whole country. They are structured terrorists' organisations that can easily find out my whereabouts if I were to return and start living as a any normal citizen.
54.      The cancellation decision has ruined our lives in so many ways that no one can bare. This decision has taken away my ability to live a peaceful, humane life, where I enjoy safety and my ability to subsist with my family in peace without the threat of harm and dying.
The hearing

The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The applicant appeared before the Tribunal on 16 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
On 14 February 2019, the Tribunal received submissions and additional evidence from the applicant, which included the following:
·Statutory declarations by the applicant’s brother, [Mr I], and her sister, [Dr J], essentially stating that they both have work and family commitments, which prevent them from being able to care for their elderly mother, who resides with the applicant. Their mother has refused assisted care at home and will ‘not cope mentally in a nursing home’. The applicant is a full-time carer for their mother. The cancellation of the applicant’s visa has adversely affected their mother’s mental health, making her ‘extremely anxious.’ The applicant and her mother have a very strong connection and their mother cannot comprehend living away from her.
·Letter from [Rev E], parish priest at [a] Church, [City 4], dated 20 January 2019. [Rev E] stated that he has known the applicant since she arrived in Australia in 2013 and joined the parish. He stated that the applicant is a ‘dedicated Christian’ and serves the church voluntarily by visiting elders, serving children during school holidays, cleaning the church and assisting in the bookshop. She also carries out similar tasks at the Coptic Church in [Country 7].
·A report by [Dr K], [of specified occupation], dated 31 January 2019. [Dr K] stated that the applicant’s mother, [Ms L],[has various conditions]. She is incapable of caring for herself and relies on the applicant to care for her and complete activities of daily living. In addition, the applicant has Post-Traumatic Stress Disorder due to her past experiences in Egypt. She is also been severely impacted by the breakdown of her relationship with her daughter, who is currently in the [Country 2].
In her submission, the applicant’s representative provided country information in relation to the situation of Coptic Christians in Egypt and the risk to the applicant as a single Coptic Christian woman.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the s.107 notice?
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[3]
[2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
For the reasons outline below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.
As noted above, the applicant travelled to Australia [in] February 2013 and applied for a protection visa on 6 March 2013. She was granted a protection visa on 17 October 2013 on the basis of the claims made in her application for a protection visa and the accompanying statement set out earlier in this decision record. The applicant had claimed that she would be seriously harmed by the Muslim Brotherhood connected with the [Family B] and that she had moved from Sohag to Alexandria and then to [District 2] to avoid the claimed agents of persecution. More specifically, the applicant had claimed to have ‘tried relocating several times to escape those that want to kill me and [Applicant 2]. I am now convinced that it is only a matter of time before I am harmed, abducted and/or killed by members of the Muslim Brotherhood.’ She further stated:
The Muslim Brotherhood is in power and it is very easy for its members, such as [Mr B], to find me and take revenge upon me as a member of my husband's family wherever I go in Egypt. Their network and connections with the Egyptian government are such that they can easily acquire a thorough knowledge of my personal details, daily routines, habits, activities and whereabouts at any given time.
I will never be safe as members of the Muslim Brotherhood are everywhere and they can easily track me and kill me if they wished to. They operate like a network, and are now in government positions, and they will find me to get their revenge in the end. (emphasis added)
However, [in] November 2013, approximately three weeks after being granted her protection visa, the applicant returned to Egypt, where she remained for approximately eight months. The applicant travelled to Egypt again [in] October 2014, remaining for two weeks on that occasion.
In her responses to the Department’s NOICC, as well as in her written statements to the Tribunal, the applicant stated that she had travelled to Egypt after being informed that her former husband had a very serious illness. Her daughter wanted to visit her father and she could not allow her to travel to Egypt alone. She stated that she sought ‘permission’ from the Department to travel to Egypt and she took every precaution while in Egypt. She stated that she had resided at three different addresses during her first return trip back to Egypt. She had no dealings with anyone, did not catch public transport or walk on the streets and did not tell her extended family and friends that she was in Egypt.
At the Tribunal hearing, the applicant reiterated the above explanations. She added that she had travelled back to Egypt on an Australian issued travel document and with the permission of the Department. She believed that she was under the protection of the Australian government and if anything happened to her, the Australian embassy would intervene. She repeated that she had stayed at properties owned by friends and relatives and she did not leave these places except once a fortnight when she visited her former husband.
For the following reasons the Tribunal found the applicant’s explanations problematic, unpersuasive and lacking in credibility.
First, the Tribunal found the applicant’s evidence in relation to her husband highly implausible. The applicant had provided no meaningful information in relation to her former husband in her application for a protection visa. At the hearing, she told the Tribunal that she separated from her former husband, [Mr A], in 2006. Following her separation from [Mr A], also a [professional], neither she nor her two children had any contact with him as he was ‘brutal’ in his behaviour and did not support the family financially. She stated that she only found out that he was in prison and ill when she was contacted by her cousin in Egypt. And it was only after she returned to Egypt that she discovered [Mr A] had previously been sentenced to [number of] years of imprisonment for selling [unapproved goods]. The applicant denied having any knowledge of [Mr A]’s circumstances prior to October 2013. However, she also told the Tribunal that she was in contact with [Mr A’s] family during the incident involving [Mr A’s] cousins and the [Family B]. She also gave evidence that her adult son, who resides in the [Continent 1], had been in contact with his [uncle]. As it was put to the applicant at the hearing, it appeared odd that neither she nor her adult children had any knowledge of [Mr A’s] prosecution, conviction and imprisonment before her departure from Egypt. When this was put to her at the hearing, she responded that [Mr A]’s conviction was a ‘big deal’, but he already knew that his children did not like him and he was very careful, telling all his family members not to mention he was in prison. The Tribunal considers it highly implausible that [Mr A’s] prosecution and conviction for a seemingly serious crime was so clandestine and such a well-kept secret by his ‘big’ family and acquaintances that the applicant, who worked [in a profession] until at least November 2012 and had some contact with his family, had no knowledge of [Mr A’s] fate from any source, even tentatively. The Tribunal does not accept the applicant’s evidence that [Mr A’s] conviction was not publicised because he was protected by the [union].
Secondly, the Tribunal found the applicant’s evidence regarding the reasons for her return to Egypt in October 2013 unpersuasive. As it was put to the applicant at the hearing, the Tribunal found it odd that, despite the claimed absence of any relationship between [Mr A] and his children and their intense dislike for him, the applicant’s daughter had felt compelled to return to Egypt to visit her father. The applicant stated that when her daughter found out that her father was in jail and that was dying, it was ‘a big deal’ and ultimately her emotions were governed by the father-daughter relationship. Whilst the Tribunal appreciates that the applicant’s daughter might have felt emotionally compelled to see her ‘dying’ father, it is not as easy to comprehend the length of time the applicant and her daughter had remained in Egypt in light of the claims made in the applicant’s application for a protection visa. When this was put to her at the hearing, she responded that she initially wanted to stay for three months only, but they could only visit [Mr A] once a fortnight. At that time, [Mr A] was undergoing [medical treatment] and was ‘dying’. She was told that their visits lifted his morale. The applicant did not offer any other persuasive explanation as to why she needed to remain in Egypt for eight months if her daughter had been able to see her estranged father, albeit not as frequently as she might have hoped. Furthermore, the applicant told the Tribunal that she has a [aunt] and male cousin in Egypt. When asked why, given the presence of [Mr D] and other relatives in Egypt, her daughter could not travel on her own, she stated that her daughter was in a bad psychological state and she could not allow her to travel alone. The Tribunal found the applicant’s evidence unconvincing. The Tribunal is unable to reconcile the duration of the applicant’s stay in Egypt during her first trip with the extreme fear she claimed to have experienced in Egypt only a few months prior to her return.
Thirdly, the Tribunal also found the applicant’s explanations regarding her second trip to Egypt [in] October 2014 and [November] 2014 unconvincing. The applicant explained that she had decided to return to Egypt because [Mr A] was due to undergo an operation to remove [a specific organ], which could put his life at risk, and her daughter had insisted on going back. The operation, however, was postponed after they arrived in Egypt. As noted in the delegate’s decision, [Mr D], in an interview held on 7 September 2016 with the Department in connection with his Combined Partner visa application, sponsored by the applicant’s daughter, stated that he was formally engaged to the applicant’s daughter in October 2014. As it was put to the applicant at the hearing, this appeared to be an unlikely coincidence, which raised doubts in relation to the reasons put forward for the trip. The applicant stated that her daughter and [Mr D] had been in a relationship since 2011 and he had already proposed during their first return trip to Egypt. There was no formal engagement as [Mr D] had already proposed and given her a ring. The Tribunal is not persuaded by this explanation, which does not address the information provided to the Department by [Mr D] that he was formally engaged to the applicant’s daughter in October 2014. This, in turn, casts doubt on the applicant’s evidence that the purpose of her second trip to Egypt was her daughter’s insistence on being present during [Mr A’s] claimed operation.
In reaching this view, the Tribunal has also placed weight on the applicant’s vague and unpersuasive evidence in relation to her knowledge of [Mr A’s] circumstances following her second trip to Egypt. At the hearing, when the Tribunal enquired as to [Mr A’s] present circumstances, the applicant said she did not know anything about him and had visited him in Egypt only to support him. As it was put to her at the hearing, the Tribunal found it odd that she had made the effort to return to Egypt to support [Mr A] and had felt sufficient concern for his health to remain in Egypt for a period of eight months, but she had no information about him from any source since her second trip to Egypt. The applicant stated that, during her second trip to Egypt, there was a ‘big fight’ between [Mr A] and her daughter. There was also conflict with [Mr A’s] brother, and her son has cut all ties with his father. The Tribunal finds the applicant’s evidence disingenuous and unconvincing. The applicant told the Tribunal that she and her daughter had returned to Egypt in October 2014 because [Mr A’s] scheduled operation was very important as it had only a 70% chance of success. The operation, however, had been postponed and the Tribunal considers it inexplicable that neither the applicant nor her children had shown any interest in the operation, its outcome and [Mr A’s] fate. The Tribunal is of the view that the applicant’s evidence regarding [Mr A] is manipulated and contrived to serve her purpose.
Fourthly, the Tribunal found the applicant’s explanations as to why the Muslim Brotherhood connected with the [Family B] had targeted her unpersuasive and implausible. The applicant told the Tribunal that [Mr A] has a ‘big family’ and many siblings. The Tribunal put to her that she had separated from husband in 2006 and had little contact with him and his extended family. She was asked why the Muslim Brotherhood had put so much time and resources to find and target her when they could have harmed many other members of the [Family A]. The applicant said a supermarket and many houses were damaged. When pressed as to why the Muslim Brotherhood had shown so much determination in locating and harming her over a period of many months and long after the incident in [Village 1], she said, after that incident, they threatened the whole family and everyone escaped and was forced to leave. No one was left in that village. The Tribunal noted that it appeared that the only reason she was targeted in the manner claimed was that she was previously married to a member of the [Family A]. It was put to her that it would be reasonable to assume that other members of the family would have been located and targeted like her, but no one else appears to have been harmed. She responded, at that time, they were waiting for those arrested to be sentenced and perhaps the whole family had left Egypt a month or two after the incident. The Tribunal found the applicant’s evidence improvised, far-fetched and highly unpersuasive, casting doubt on her protection claims regarding being targeted by Muslim Brotherhood members connected with the [Family B].
Having carefully considered the evidence before it, the Tribunal did not find the applicant to be a credible and truthful witness. The Tribunal does not accept that the applicant had felt compelled to return to Egypt on two occasions for the reasons she has provided. The Tribunal finds the applicant’s explanations regarding her return trips to Egypt to be false and misleading. The applicant returned to Egypt [in] November 2013, about eight months after lodging her application for a protection visa and three weeks after being granted a protection visa, and remained for a period of eight weeks. She travelled to Egypt again [in] October 2014, remaining in that country for [a few] weeks. The Tribunal considers the fact that the applicant returned to Egypt twice for a total period of just over eight months logically supports the conclusion that she did not in fact fear being harmed, abducted and/or killed by members of the [Family B] or the Muslim Brotherhood as claimed in the statement accompanying her application for a protection visa.
In the present case, the Tribunal is satisfied that the applicant had provided incorrect information in her statement of 5 March 2013 in relation to her fear of harm in Egypt. The Tribunal is satisfied that the applicant provided incorrect information in response to Questions 42, 43, 45, 46 and 47 of her application for a protection visa. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.
The correct information
The Tribunal considers that the correct information is that the applicant was not threatened, tracked and followed by the Muslim Brotherhood or the [Family B] in Egypt and that she did not fear being seriously harmed at the hands of Muslim Brotherhood members connected with the [Family B]. The Tribunal gives this factor significant weight towards the visa being cancelled.
The content of the genuine document (if any)
Whilst the s.107 notice also relied on s.103, the Tribunal has found that the documents identified are not bogus.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

A careful reading of the delegate’s decision record indicates that the protection visa was granted on the basis that the delegate accepted that the applicant had been harassed by ‘Muslim fundamentalists as a female Christian’; that ‘Coptic Christians are not offered effective protection by Egyptian authorities, which is equal to the effective protection offered to Muslim population’; that ‘women in Egypt are not offered effective protection that is equal to men, by Egyptian authorities’; and that the applicant ‘remains at risk of persecution by way of further targeting as an identifiable female Christian who does not [wear] a hijab.’ The delegate found:
The applicant, a Coptic Orthodox Christian, faces a real chance of serious harm, such as being beaten or killed whilst engaged in the practice of her faith:
·by Muslim mobs and that the security forces of Egypt will be unable or unwilling to provide her protection: or
·Muslim extremist groups and that the security forces of Egypt will be unable or unwilling to provide her protection; or
·by the Egyptian security forces themselves.
The delegate’s reasons do not appear to demonstrate that she had considered the specific claims made by the applicant in relation to the incident in [Village 1] and its aftermath or her fear of harm at the hands of specific non-state agents of persecution, namely Muslim Brotherhood members connected with the [Family B]. As evident in the segments of decision cited, the delegate granted the visa on the basis that the applicant is a Coptic Christian woman at risk of harm from Muslim mobs or extremists groups and that the authorities in Egypt would be unwilling or unable to provide her with protection. The Tribunal gives this factor significant weight in favour the visa not being cancelled.
The circumstances in which the non-compliance occurred
The applicant has persistently maintained that she did not give incorrect information to the Department in her application for a protection visa and statutory declaration, so she has not provided any mitigating circumstances to explain why she has done so. The Tribunal gives this factor significant weight towards the visa being cancelled.
The present circumstances of the visa holder
The Tribunal accepts that the applicant is providing high level care for her elderly mother in Australia. The Tribunal accepts that [Ms L] has a number of serious medical conditions, including [a medical condition], and that both the applicant and [Ms L] have found the cancellation of the applicant’s visa and the associated process distressful. The Tribunal accepts that this has also had an adverse impact on [Ms L’s] state of health. The Tribunal accepts that the applicant’s siblings are unable to provide their mother the care that she needs and that [Ms L] is unwilling to enter into an aged care facility. The Tribunal is also prepared to accept that the cancellation of the visas has had an adverse effect on her relationship with her daughter. The Tribunal is prepared to give these matters some weight in favour of the visa not being cancelled.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As noted above, the applicant has maintained that she did not give incorrect information to the Department in her application for a protection visa and statutory declaration.
Any other instances of non-compliance by the visa holder known to the Minister
On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this little weight towards the visa not being cancelled.
The time that has elapsed since the non-compliance
The relevant non-compliance in the present case took place when the applicant made her application for a protection visa in March 2013 so over six years have elapsed since then. The Tribunal gives this little weight towards the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community
The Tribunal accepts that the applicant continues to be involved with the Coptic Church in Australia and has been providing services to her religious community on a voluntary basis, including, visiting elders, serving children during school holidays, cleaning the church and assisting in the bookshop. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.
Other considerations
In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[4] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
[4] PAM 3 – Migration Act - Visa cancellation instructions > General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).
The applicant’s daughter’s visa was consequentially cancelled. The Tribunal also notes that the applicant’s daughter is outside of Australia and appears to be residing with her husband in the [Country 2]. The applicant and her daughter have no communication and very little evidence was provided to the Tribunal regarding the applicant’s daughter. The Tribunal gives this consideration little weight in favour of the visa not being cancelled.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent her from making a valid application for any visa without the Minister personally intervening. However, the applicant is a citizen of Egypt and it would appear that she can obtain a passport or other travel document and return to Egypt and be admitted to the country. The Tribunal's concerns in relation to what may happen if she were to return to Egypt have been considered below.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[5] for example whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment[6]
[5] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16) and PAM3: Act – Compliance and case resolution – Guiding principles – Treatment of children (issue date 1/1/12).
[6] Non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16).
The Tribunal accepts that the applicant is Coptic Christian. The Tribunal also accepts that she is a single, divorced woman with no support or close relatives in Egypt, other than a [aunt] and a male cousin.
In its 2017 Country Information Report in relation to Egypt, the Department of Foreign Affairs and Trade assessed that the majority of Egyptian women, regardless of religion and socio-economic level, faced societal discrimination as ‘long-standing traditional values and gender roles continue to restrict their participation in the community and workforce.’ DFAT assessed that ‘the majority of Egyptian women face a high risk of gender-based violence, including sexual assault and domestic violence.’
The United States Department of State (USDOS) similarly reports that during 2018:
Domestic violence was a significant problem. The law does not prohibit domestic violence or spousal abuse, but authorities may apply provisions relating to assault with accompanying penalties…Police often treated domestic violence as a social rather than criminal matter…
Sexual harassment remained a serious problem. The government prioritized efforts to address sexual harassment. The penal code defines sexual harassment as a crime, with penalties including fines and sentences of six months to five years’ imprisonment if convicted. Media and NGOs reported that sexual harassment by police was also a problem, and the potential for further harassment further discouraged women from filing complaints…
The constitution provides for equal rights for male and female citizens. Women did not enjoy the same legal rights and opportunities as men, and discrimination was widespread. Aspects of the law and traditional societal practices disadvantaged women in family, social, and economic life.
Women faced widespread societal discrimination, threats to their physical security, and workplace bias in favor of men that hindered their social and economic advancement.[7]
[7] Country Reports on Human Rights Practices for 2018 – Egypt’, US Department of State, April 2019.
With regard to sexual harassment, it has been reported that most women are likely to experience such behaviour in their lifetimes, irrespective of their religion, whether they cover their hair or what they are wearing. A 2013 survey by the United Nations (UN) found that 99.3 per cent of Egyptian women had experienced sexual harassment.[8] In a follow up survey completed by the UN in 2017, this number dropped to 60 per cent.[9] It is not immediately clear what has led to the decline.
[8] ‘In some affluent circles in Egypt, the hijab and burkini just won't do’, Global Post, 25 October 2017, CXC90406616573; ‘Women in Egypt Harassed, Mutilated and Disenfranchised’, Spiegel Online, January 2018, CIS7B83941654
[9] Spiegel Online, ibid.
In October 2017, Global Post reported that ‘street harassment is a part of everyday life for women’ in Egypt. According to the article:
In fact, Cairo was recently named the worst megacity for women. And across Egypt, 60 percent of women, regardless of class or how they dress, say they've been sexually harassed or assaulted, according to a UN gender equality study published this year — in previous years, the figure was as high as 99 percent.[10]
[10] Global Post, n8, above.
In August 2018, Australia’s ABC News reported:
Sexual harassment in the street is also incredibly common — on one day alone in 2015, during the Eid al-Adha religious holiday, the anti-sexual violence group I Saw Harassment documented more than 200 incidents of either verbal or physical sexual assault against women.
But it also happens on a daily basis with women being verbally and physically assaulted in public places.[11]
[11] ‘Young women in Egypt fight harassment on the street and restrictions at home’, ABC News, 27 August 2017, CXC90406624796.
State protection for women in Egypt against sexual harassment is limited. Although Egypt introduced a law criminalising harassment in 2014, its effectiveness is limited, as evidenced by the continuingly high levels of harassment against women. The June 2014 legislation criminalises sexual harassment and introduces penalties including prison terms of between six months and five years as well as fines.[12]
[12] ‘Sexual harassment made a crime in Egypt’, Al Jazeera, 6 June 2014, CX321728; ‘Sexual harassment cases dropped this Eid: National Council for Women’, Egypt Independent, 19 June 2018, CXBB8A1DA36648
However, reports indicate that this law is not effectively enforced. Egyptian Streets reports that the law is difficult to implement due to the necessary level of evidence that prosecution requires and because ‘many women opt not to report the harassment for fear of victim blaming.[13] Freedom House similarly notes that laws prohibiting sexual harassment, domestic violence and female genital mutilation have limited effectiveness:
[T]he effectiveness of such laws is hindered by social resistance, poor enforcement, abuses by the police themselves, and lack of adequate protection for witnesses, which deter victims from reporting abuse and harassment.[14]
[13] ‘Egyptian Woman ‘Spat on by Man over Short Dress’, Egyptian Streets, 1 September 2018, CXBB8A1DA36647
[14] ‘Freedom in the World 2018 – Egypt’, Freedom House, 16 February 2018, NGED867A61
Indeed, according to USDOS, sexual harassment by police is also a serious problem in Egypt[15] and the government has dismissed the UN’s previous finding that in 2013, 99 per cent of women in Egypt had experienced sexual harassment and the aforementioned 2017 Thomson Reuters Foundation poll that named Cairo as the worst megacity in the world for women.[16] In November 2017, the President of the National Council for Women (NCW), Maya Morsy, dismissed these findings as biased, stating a NCW commission study that found in 2016 only 9.6 per cent of women were harassed.[17]
[15] USDOS, n7, above.
[16] ‘The world's most dangerous megacities for women 2017’, Thomson Reuters Foundation, 2017, CISEDB50AD9217.
[17] ‘Sexual Harassment Rate in Egypt Is Only 9.6 Percent: Head of National Council For Women’, Egypt Streets, 14 November 2017, CXC90406624797; ‘Women in Egypt Harassed, Mutilated and Disenfranchised’, Spiegel Online, January 2018, CIS7B83941654.
The NCW was established in 2000 as the national body responsible for regulating and addressing women’s affairs in Egypt.[18] Regarding the effectiveness of the NCW, Spiegel Online reports:
The National Council for Women is now seen as an extension of the military government. Critics contend that the organization lacks political will, effective measures and transparency. They say that allegations of sexual crimes by security forces are not adequately investigated. When Human Rights Watch denounced widespread torture by police and state security officials in early September, the human rights committee of the Egyptian parliament called it ‘a pile of lies aimed at tarnishing Egypt's reputation.’[19]
[18] ‘Does Egypt really need a Women’s Affairs Ministry’, Al Monitor, 19 December 2017
[19] Spiegel Online, n17, above.
The sources consulted by the Tribunal report that, during 2018, two women who publically complained about being sexually harassed in Egypt have been sentenced to prison.[20]
[20] ‘Egyptian woman jailed after posting video complaining about sexual harassment’, ABC News, 1 October 2018, CXBB8A1DA36651.
Having carefully considered the above information, the Tribunal has formed the view that the applicant, as a single, divorced, Coptic Christian woman with no close relatives or support in Egypt is at a particular risk of harm. The Tribunal accepts the applicant’s representative’s submission that a single woman in Egypt is always seen as a woman without protection and could be targeted for a variety of reasons.
Whilst the applicant previously worked as a [Occupation 2] in Egypt, she is now [age] years old, she has not worked [in Occupation 2] or in any other profession since 2012, and she has no obvious means of financially supporting herself. In view of the pervasive discrimination against women in Egypt, the Tribunal considers it likely that the applicant would be exposed to discrimination and harassment on a regular basis, particularly in the course of resettling herself back in Egypt through finding appropriate accommodation, means of earning a livelihood and accessing services.
Furthermore, at the hearing, the applicant struck the Tribunal as a strong and outspoken woman. The Tribunal also accepts that the applicant has been an active member of the Coptic Christian Church in Australia and that she would continue to seek to worship in and serve at the Coptic Christian church in Egypt. If the applicant were to be removed to Egypt now or in the reasonably foreseeable future, she would not be accompanied by her daughter or anyone else on this occasion. The Tribunal finds that these factors are likely to contribute to the applicant further standing out as a single, Coptic Christian woman in a society where women are at a ‘high risk’ gender-based discrimination and violence.
The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm in Egypt. The Tribunal is satisfied that the essential and significant reason for the persecution feared is the applicant’s membership of a particular social group, namely single, Coptic Christian women in Egypt. On the basis of the evidence before it, the Tribunal is not satisfied that state protection is available to the applicant in Egypt. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Egypt. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Egypt for the reason of her membership of a particular social group.
If the applicant’s visa is cancelled and she is returned Egypt, the Tribunal finds that Australia will be in breach of its non-refoulement obligations and it has given this factor a very significant degree of weight that supports not cancelling the visa.
Conclusions
The Tribunal has carefully considered the above factors. In the present case, the Tribunal remains concerned that the applicant has continued to maintain incorrect information about the claims put forward in connection with her application for a protection visa. Protection visa applicants who provide untruthful accounts of their circumstances undermine the integrity of the migration system. The applicant has engaged in such conduct and the Tribunal considers her conduct to be serious.
The Tribunal also recognises the serious consequences which flow from the decision to cancel the applicant’s visa. In Sullivan v Civil Aviation Safety Authority,[21] the Full Court of the Federal Court considered a review by the AAT of a decision to cancel an aviation licence. In that case, Flick and Perry JJ said that:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[22]
[21] (2014) 226 FCR 555
[22] At [120]
In this case, the consequences of the cancellation are particularly grave. The delegate granted the visa on the basis that the applicant is a Coptic Christian woman at risk of harm from Muslim mobs or extremists groups and that the authorities in Egypt would be unwilling or unable to provide her with protection. The Tribunal has also found that the applicant would face a real chance of persecution on return to Egypt, in breach of Australia’s international non-refoulement obligations. The Tribunal gives significant weight to this factor. To a lesser extent, the Tribunal also gives weight to the impact of the cancellation on the applicant’s elderly and incapacitated Australian citizen mother for whom she is a full-time carer. The Tribunal considers that these matters outweigh the considerations supporting the cancellation of the applicant’s visa.

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having carefully considered all the relevant circumstances, as discussed above, the Tribunal concludes that, in the particular circumstances of this case, the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Shahyar Roushan
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)    is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)    setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 5836

30 April 2019

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