1821002 (Refugee)

1821002 (Refugee) [2022] AATA 1474 (8 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821002

COUNTRY OF REFERENCE: Egypt
MEMBER:Luke Hardy
DATE:8 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 April 2022 at 12:57pm
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – woman not wearing the hijab – targeting by Muslim extremists – accommodation – attempted conversion by Muslims – forced marriage – strong compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 417
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a Coptic Christian citizen of Egypt. She was born in [year], and is now [age] years old. She arrived in Australia [in] December 2010 on a three-month sponsored family visitor visa. She did not seek protection in Australia and departed for Egypt before that visa expired and re-entered Australia on a similar visa [in] March 2014. She stayed three months, did not seek protection here and then returned to Egypt. She then entered Australia [in] November 2016 on a six-month sponsored family visa. She did not seek protection here during that time but, rather, lodged an invalid [family] visa application on 12 December 2016. On 8 May 2017, shortly before her six-month visitor visa expired, [the applicant] lodged a protection visa application.
The delegate refused to grant the visa on 10 July 2018 and [the applicant] applied for merits review by this Tribunal. The matter was constituted to me. I find that the review application is valid.
[The applicant] appeared before the Tribunal on 6 April 2022 to give evidence and present arguments. Her daughter, an Australian citizen, also attended the hearing mainly to give social support, although I found it appropriate and helpful to bring her into the discussion later in the hearing.
The hearing was facilitated by an interpreter in the Egyptian Arabic-English medium.
The hearing was held as an MS teams telephone hearing conforming with heath protocols introduced during the COVID-19 pandemic. I exercised the Tribunal’s discretion to do this determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding undue delay to the matter were the hearing not to be conducted by video
I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The key issue in this case is whether [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
In her original protection visa application, [the applicant] claimed to be a resident in an apartment block in the [named] district of Cairo.
As a widowed elderly lady l am often targeted by fanatical Muslims due to my religious [sic]. They believe I am vulnerable so they try to pressure me to become Muslim or continuously harass me about my religion.
The situation in Egypt has become a lot worse in last few years especiaily [sic] after Morsi was removed from office. Many MB members blame Christians for this. Also they attack Christians in a way to terrorize the current government.
I am harassed in the streets because I do not wear hijab.
People in my local area know that I am a widow and harass me to become Muslim and marry a Muslim.
In the building where I live all the Muslims have been harassing me to leave because they do not want Christians in the building.
I can not put religious music on because neighbors start to bang on my door to put it off. ü
I am harassed by frequent knocks at my door and people swearing at my religion.
From my balcony you can see religious pictures in my home. I have had things thrown at my balcony and forced to remove the pictures. I was forced to close my balcony to feel safe…
I will be harassed and the more that I refuse to do what they want the more they persecute me. I can not live safely as a Christian…
[The applicant] did not say whether she had ever sought assistance or protection from Egyptian authorities, but did claim as follows:
The government does not get involved in community disputes between Christians and Muslims.
Prompted to say whether she might be able safely to relocate to another part of her country to avoid the harm she claimed to fear, [the applicant] said:
All areas of Egypt Christians are discriminated against.
[The applicant] attended an interview with the delegate. For the purposes of this review, she submitted a copy of the delegate’s decision which includes a summary of her oral evidence and identifies issues critical to the primary decision.
Of some interest in this matter I note the following text found in the primary decision:
The applicant was asked if she had ever been stopped from attending Church for any reason and stated that in the past when she walked to Church she was regularly verbally harassed by Muslims. She stated that she because of [a medical condition] she didn’t attend Church as often as she used to when she could walk there. She stated that she has had two incidents with taxi drivers when travelling between Church and home. She stated that in 2012 a taxi driver told her to get out of the taxi when she asked to be taken to the Church; and in August 2016 a taxi driver took her home via back lanes that she did not recognise so fearing her safety as a Christian women she asked to be let out of the vehicle. She stated that she and a group of other Christians are collected on Sunday afternoon by a church vehicle which takes them to Church and returns them home…
The applicant in her statement indicated that she had experienced problems from her Muslim neighbours. She was asked to discuss this and stated that she had lived in her first floor flat since she purchased it in 2012. She stated that the woman gate keeper to the building is a Muslim Brotherhood sympathiser who associated with members of the Muslim Brotherhood. She stated that this woman regularly left the gate unattended and also tried to convert her to Islam. She stated that in her unit she could not turn up the volume of her Christian music; she was forced to put a [religious object] inside her unit as she was fearful of someone breaking the glass of the patio by throwing something at it; and people came and knocked on the door and ran away during the night which was frightened her. She stated that she had been subjected to regular verbal abuse from Muslims in the building...
She spoke of being pushed to the ground near her building by a tall youth, she stated that other people knew her and helped her at that time. When asked why this happened, she indicated that this happens to people regularly. She indicated that she received treatment that was unfairly at the pension office saying that she had to provide documents not normally required and was kept waiting for much longer than Muslim people.
The applicant was asked about the claim that she was forced to cover her head and stated that she ties her scarf around her hair when she goes out in public to avoid trouble. She stated that it is better to do this than to risk a problem. She stated that it was easy to do this as she did not want to cause problems for her children in Australia.
The applicant was asked about her claim that people had tried to convert her. She indicated that a man who regularly attends the same pension office as her asked her if she was still alone and if she would like to marry him. She indicated she refused him as she still loved her husband however she is sure he was really was only interested in converting her to Islam.
The applicant was asked if she had reported any trouble she had experienced to the police and stated she had never needed the police and they did not have time to look at minor matters such as hers. It was put to the applicant that if she did experience problems in Egypt that the police would assist her. She commented that the police [are] busy on serious matters not the small things.
Independent country information
I have had regard to the following information from DFAT in its Country Information Report: Egypt, published 17 June 2019:
Christians
3.31 Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and in major cities such as Cairo and Alexandria. Suburbs in Cairo and other cities and some villages are sometimes regarded or described as ‘Christian areas’, but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.
3.32 Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely than Muslim women to leave their hair uncovered. Christian women living in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab. Christians tend to have identifiable names. Some Christians tattoo small crosses on the inside of their wrists or between their thumb and forefinger as a mark of their identity, often following visits to monasteries or holy sites. Not all Christians have these tattoos and it is not a mandatory religious practice.
3.33 There are no legal barriers to prevent Christians from being visible in public life, and a number of Christians have become prominent and influential in Egyptian politics and business. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be under-represented in senior civil servant roles, and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.
3.34 Most Christians viewed the post-2011 Revolution ascendency of the Muslim Brotherhood with considerable apprehension. They regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi’s public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians ... Local sources report that Christians generally remain strong supporters of Sisi, although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt.
3.35 Minority Rights Group International estimates that there are between 1000 and 1500 Jehovah’s Witnesses living in Egypt. Although the denomination is not officially recognised, authorities permit its members to meet privately in gatherings of fewer than 30 people). Jehovah’s Witnesses are banned from importing religious literature such as Watchtower publications, which are a key part of religious instruction and practice for Witnesses.
3.36 DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means … Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities...
The applicant was asked if there were other reasons she did not want to return to Egypt. She stated that she suffers loneliness and feels safe in Australia with her son and daughter. She stated that things in Egypt are not nice, people don’t socialise like they used to and there are mostly Muslims in her building. The applicant was asked if there were any Christians in her building and stated that there is a doctor and a priest. The applicant was asked if there were other Christian families in her area and stated that while the majority of the families are Muslim there are many Christian families.
Evidence to the Tribunal
At the Tribunal hearing, [the applicant] repeated most of the claims she made to the department. She said that the former neighbour who bothered her the most was [an age] year-old woman. She also said she has given up the apartment in which she used to live, has no legal or contractual right to reside there in future, and, in any event, does not know if her combative neighbour is even still alive. Asked if she could move to some other building in Cairo where there are only Christian residents, or at least no vocally bigoted neighbours, she said she would have no-one to look after her there. I acknowledge that [the applicant], who used to live alone in her former flat block, is now incapable of looking after herself, as medical information cited below attests.
[The applicant] said that people on the street in her former neighbourhood used to throw things at her windows because they could see religious art on her walls. The harm she described here did not appear to rise even cumulatively to serious harm. [The applicant] said that to fix this problem she had to put curtains up. She indicated that this reduced that particular form of harassment in her life but, in any event, she can no longer live in that apartment because she gave it up and can no longer access accommodation above a ground floor.
[The applicant] said that she usually caught taxis to church on Sundays. She said that the drivers would sometimes be listening to Koranic verse recitations on their radios and would fail or refuse to turn the volume down when she asked them. She said this sometimes meant she had to stop the trip get out of the taxi and walk to church. The harm she described here did not appear to rise to serious harm.
I asked [the applicant] if she could live in alternate accommodation in Cairo and she said she cannot because has no money.
I have given consideration to [the applicant’s] advanced age and infirmity, and accept that this made it difficult for her to give detailed and fulsome responses to some of the issues I raised or explored with her.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that some discrimination against Coptic Christians occurs in Egypt notwithstanding laws enacted to protect religious belief in that country. Whether this general state of affairs will give rise to a real chance of an Egyptian Coptic Christian being persecuted for reasons of his or her religion in the reasonably foreseeable future is a separate question and needs to be assessed on the individual merits of each individual’s case.
[The applicant’s] claims are about cumulative acts of discrimination against her intended to antagonise her for reasons of her being a Coptic Christian in predominantly Muslim Egypt. I accept that these incidents have occurred in her life. However, they appear on the evidence to have been particularly localised to the building in which she used to live and to the behaviour of neighbours, one in particular, amongst whom she used to reside. It is hard to speculate that those conditions as described would continue to press on her, in the event of her returning to reside in Egypt, because she is no longer capable of living on her own in an apartment environment, let alone above the ground floor, as medical information cited below attests.
I have considered all of the claims [the applicant] has made. I do not accept on the evidence before me that she would be forced to marry a Muslim in the reasonably foreseeable future. I am not satisfied on the evidence before me that she would be forced to wear a hijab or hide from society the fact that she is a Coptic Christian. I am not satisfied that the behaviour she described as having impinged on her at home or in taxis, or even on the street when he was knocked over once by a youth, give rise even cumulatively to a real chance of serious harm for reasons of her religion.
I note that [the applicant] evidently claimed not to have involved the authorities in protecting her from the kind of vicissitudes she faced from time to time in her past because these events would be regarded by them as “small things.” On the evidence before me they are generally localised, isolated and individualised instances of adversity that do not amount, even cumulatively to serious harm that could reasonably be called persecution. Even upon considering [the applicant’s] age and infirmity, I am not satisfied that they are indicative, even cumulatively, of [the applicant] facing a real chance of serious harm in the reasonably foreseeable future, irrespective of where she might reside in Egypt.
I give weight to the DFAT report cited above in finding that [the applicant] can live and attend church openly as a Coptic Christian in Egypt, particularly in her home city of Cairo.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted even cumulatively in Egypt in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted in Egypt is not well founded. She is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Egypt, I find that Egypt is the receiving country in this matter.
[The applicant’s] claims to complementary protection are essentially the same as her refugee claims. Those claims are unsuccessful because harm amounting to serious harm, and therefore persecution, was not found. Those claims also failed to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant’s] refugee claims can no more succeed as complementary protection claims.
Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Egypt, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, she does not satisfy the criterion in s 36(2).
S.417 referral
[The applicant] and her daughter have asked that I refer this matter to the Minister for humanitarian consideration in the event of her claims not meeting s.36(2)(a) or (aa).
In this case the two guidelines against which [the applicant’s] case might be considered are
Compassionate circumstances regarding [the applicant’s] age, health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
and
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to [the applicant’s] two adult children, both Australian citizens and the Australian family unit including her Australian citizen grandchildren.
Relevant to this, [the applicant] submitted a letter from her doctor in Sydney:
To Whom it may concern,
Regarding [the applicant]– DOB. [specified]
Her complex medical conditions are as follow:
- She has severe disabling arthritis in both hands, shoulders, knees, and hips.
- Her mobility is very limited. Even with using frame, she is not stable on her feet.
- She can’t go on any stairs.
- She needs full help showering, dressing and all the daily activities.
- She can’t cook for herself; her daughter has to prepare her meals before going to her work.
- She had brain surgery for brain tumor, it left her with weakness in one side of her body, attacks of migraine and severe loss of hearing, (wears hearing aids).
- Also, residual epileptic fits (on reg. Medication).
[The applicant] has no support in Egypt.
Her only brother is old and had [specified] surgery. His wife had [a condition] and on reg. chemotherapy.
[The applicant] has only one son [who] lives in [Australia], and only one daughter “[named]” with whom she lives now.
In Egypt, she lives in an apartment on the 2nd floor. She has no one to look after her in Egypt.
[The applicant’s] daughter spoke of the emotional and psychological hardship she and her brother would face if [the applicant] were required to leave Australia. She acknowledged that [the applicant] might be eligible for residential care in a Coptic Christian facility but said that there are lengthy waiting lists in Egypt for such attention and that [the applicant] would have no-one to provide appropriate or adequate care for her in the meantime.
I refer this matter to the Minister having regard to s.417 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1474

8 April 2022

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