1824869 (Refugee)

[2019] AATA 6780

1824869 (Refugee) [2019] AATA 6780 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824869

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Christopher Smolicz

DATE:9 October 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 October 2019 at 11:59am

CATCHWORDS

REFUGEE – protection visa – Egypt – Federal Circuit remittal – Religion – Coptic Christian – inter-faith relationship with Muslim women – received menacing calls – almost run over – Al-Nour party threats – relationship has since ended – no political profile – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MZAFZ v MIBP [2016] FCA 1081
SZTYV v MIBP [2018] FCA 1076

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Egypt, applied for the visa on 6 March 2015.

3. The applicant applied to this Tribunal to review the delegate’s decision.

4. On 17 November 2017 a differently constituted Tribunal (the first Tribunal) affirmed the Department’s decision not to grant the applicant a protection visa.[1]

   [1] AAT case file ref. 1606642

5. The applicant sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA).

6. On 8 August 2018 the FCCA quashed the first Tribunal’s decision because the first Tribunal failed to disclose to the applicant certificates issued pursuant to s.438 of the Act. The matter is now before the Tribunal pursuant to an order of the Court.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Material under a public interest non-disclosure certificate

13. The Minister for Immigration (or delegate) may place restrictions on material given to the Tribunal by the Department. Section 438 permits the Minister to certify in writing that the disclosure of information is contrary to the public interest or notify the Tribunal that it was given in confidence to the Department.

14. The Tribunal notes that the following certificates issued by a delegate of the Minister under s.438 of the Act are located on the Department’s file ([source deleted]):

    ·Certificate dated 19 April 2016 issued under s.438(1)(a)

    ·Certificate dated 19 April 2016 issued under s.438(1)(b)

    ·Certificate dated 13 May 2016 issued under s.438(1)(a)

    ·Certificate dated 14 May 2019 issued under s.438(1)(a)

15. The Tribunal has considered the certificates and the reasons why they were issued in respect of the specified folios. The Tribunal provided the applicant with copies of the certificates and gave him an opportunity to comment on their validity.

16. For the following reasons the Tribunal has formed the view that the certificates dated 19 April 2016 and 13 May 2016 issued under s.438(1)(a) are not valid.

17. The certificates state that ‘disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs’. The Tribunal is of the view the certificates are invalid, as no public interest reason has been properly specified on the certificates. Indeed in MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) it was held that a s.438 certificate which had been placed on documents on the basis that they contained ‘internal working documents’ was invalid, as this is not a sufficient basis for public interest immunity either at common law or under statute.

18. The remainder of the certificates were issued pursuant to s.438(1)(b) and state that information was received from a third party in confidence. The Tribunal is of the view that the folios the subject of the certificates do possess the necessary quality of confidence required for s.438(1)(b).[2]

    [2] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].

19. The Tribunal was also provided with ‘dob-in’ material on 3 October 2018. This material is not the subject of a s.438 certificate.

20. The Tribunal has considered the information that was provided to the Tribunal and the information which was subject to s.438 certificates. The Tribunal finds that all of this information meets the definition of ‘non-disclosable information’ under s.5 of the Act.

21. ‘Non-disclosable information’ as defined in s.5(1) of the Act includes information whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence and information or matters whose disclosure may be contrary to the national or public interest.[3]

    [3] Information which meets the definition of ‘non-disclosable information’ is explicitly exempt from the obligations in s.424A and s.424AA of the Act.

22. The Tribunal has given consideration to whether it is possible to nonetheless disclose the substance or gist of the information to the applicant to assist in affording the applicant procedural fairness while at the same time protecting any relevant public interest, including the interest in protecting informants.

23. The Tribunal disclosed the gist of the information subject of the certificate and material located on the Tribunal’s file to the applicant at the hearing without disclosing the identity of the third party. Specifically, the Tribunal informed the applicant it has received information that alleged that his claims for protection were false, that he has committed criminal offences in Australia and had been referred to the police and that the person alleged he was not a person of good character. He claims he knows who made the allegations and it relates to a family dispute. He said he has not come to the attention of the police in Australia. He is currently working [in an occupation] and it is a requirement that he has no criminal antecedence. The applicant said that he did not provide false information to the Department in support of his claims.

24. The Tribunal notes that the ‘dob-in’ allegations are vague and not supported by a signed statement or supporting evidence. The Tribunal is also aware that allegations can be made for personal reasons. The Tribunal has considered all of the dob-in information and in the circumstances has decided to exercise caution and not to place any weight on the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because he is a Coptic Christian who was in a relationship with a Muslim woman in Egypt.

26. The Tribunal conducted a hearing on 2 July 2019. The hearing was adjourned because the applicant had raised his concerns about the suitability of the interpreter who the applicant claims was from the Muslim faith. Following the hearing the Tribunal wrote to the applicant setting out the Tribunal’s policy and relevant authorities for the selection of interpreters by the Tribunal. The applicant was sent out a second hearing invitation where he was given an opportunity to advise the Tribunal if there are any issues that may affect his ability to take part in the hearing. The applicant’s migration agent did not respond or raise any issues with the Tribunal that may impact on the applicant’s ability to give evidence at the hearing. The applicant attended the second hearing on 31 July 2019 and confirmed that he had no problems or issues proceeding with the nominated interpreter at the second hearing.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of substantive claims

28. The applicant provided the following information in support of his application for protection.

29. He is a Coptic Christian living in a country where the majority of the population are Muslims. He has faced many difficulties in Egypt because of his religion. As a young child growing up in Egypt he experienced persecution because of his religion. For example people would swear at him, he was abused at school and university and faced discrimination in finding work.

30. He claims that in the past 30 years Catholic churches have been burnt, and Catholic girls kidnapped, raped and forced to convert to Islam. The Egyptian government is weak and unable to deal with radical Muslims. On 6 January 2010 (Coptic Christmas Eve) Muslims killed six Christians when they were leaving church. He lost a friend during the 2011 New Year’s Eve bomb explosion.

31. He completed a [course] and in July 2010 commenced work [in another occupation] at [Business 1]. After three years he was promoted to [a position]. In 2012 he met a Muslim girl called [Ms A] who was also working at [Business 1] and they fell in love.

32. Inter-religious relationships are uncommon and socially stigmatised in Egypt so they kept the relationship secret for over two years. [Colleague 1] at work found out about the relationship. In the following weeks he received threatening phone calls from unknown people about his relationship. He was told he would be punished if he continued with the relationship.

33. One day when he was travelling to work he was almost run over by a car which was parked on the side of the road. He claims it was obvious to him that it was not an accident. He was lucky not to be hit and escaped injury. After this incident he began to receive menacing phone calls from blocked numbers. One of the callers told him that he should convert to Islam or he would be dealt with according to Sharia law, which he took to mean death.

34. One day he was chased by a man with a knife in the street near his work. He managed to escape.

35. He kept a low profile in the following weeks and tried to remain anonymous travelling straight from home to work and back home.

36. One day on his way to work a man approached him and started to speak to him. He knew it was a Salafist due to his beard. He claimed to have recognised the applicant’s face from [Business 1] and asked the applicant about his political views. In the following weeks the man called him and he invited him to work in [Country 1]. The applicant told him he was not interested. The man was very persistent and insisted that he meet the applicant in person so that he could offer him the position in person. He arranged to meet the man [in a location]. The man told him he wanted to protect his life and shield him from evil. He then produced a number of photos of the applicant with [Ms A] which he claims he found on [Social Media 1], despite the applicant being very strict with his privacy settings. The man told him he was a member of ‘Hizb Al-Nour Salafist Party’ (the Al-Nour party). He told the applicant he had two options: (i) convert to Islam or (ii) face death under Sharia law. The applicant claims he told the man he ended his relationship with [Ms A]. The man told him his relationship has endangered his life and he wants to help the applicant. The man told him his main objective was not helping the applicant but protecting the reputation of his party in the parliamentary elections.

37. Soon afterwards he was in a car accident where a group of Salafists driving a van rammed his car.

38. He did not go to the police and make a report because he feared it would endanger his life because the vast majority of police were Muslims.

39. He kept a low profile until he arrived in Australia. He claims if he returns to Egypt he will face persecution from Salafists because he was dating a Muslim woman.

    Tribunal hearing

40. The Tribunal questioned the applicant about his relationship with [Ms A]. The applicant said he was in a relationship with a Muslim woman that he met at work. He was never engaged to [Ms A] and they did not plan to marry. He did not tell his parents about the relationship and he believes that her parents also did not know anything about their relationship.

41. The applicant said that his relationship with [Ms A] has now ended. He no longer has any contact with her. He understands that she has now married a Muslim man. The applicant said that he has moved on with his life and is now in a relationship with another woman who he met in Australia.

42. The Tribunal asked the applicant to explain if he still had fears of returning to Egypt now that his relationship with [Ms A] has ended. The applicant said that he fears harm in Egypt because he was in a relationship with a Muslim woman. He fears the same people who caused him trouble will remember him if he returns to Egypt. He fears that they may try to kill him.

43. The Tribunal asked the applicant about his religious practice in Egypt. The applicant said he was not a strict Catholic and would only go to church ‘now and then’ during Christmas and Easter. The Tribunal finds that the applicant’s evidence at the hearing is inconsistent with the submissions provided by his representative that he is an active participant at church and regularly attends mass as a deacon every Sunday.[4]

    [4] Letter dated 3 October 2017 page 3.

44. The Tribunal referred the applicant to the reference letter he provided from [Religious Official 1] in [a city]. The Tribunal notes that the letter appears to be repeating his claims. The Tribunal told the applicant it found it surprising that [Religious Official 1] would be writing a letter in support of his relationship in circumstances where the Coptic Orthodox Church in Egypt does not permit Copts to marry Muslims. The applicant said that [Religious Official 1] understood that he made an error of judgement. The applicant said that he understood that according to the Catholic Church in Egypt he could never marry a Muslim.

45. The Tribunal questioned the applicant about the threats he experienced in Egypt because of his relationship with [Ms A]. The applicant said he received two or three harassing phone calls from unknown people because he was in a relationship with a Muslim woman. He did not report the calls to the police.

46. The Tribunal asked the applicant how the callers knew about his relationship with [Ms A] if they kept it secret. The applicant said he had no idea how the people found out. He thinks someone may have seen them together. The Tribunal asked the applicant how the callers would know his telephone number. The applicant said that his number was on his business card at work. He was unable to provide a copy of his business card and said he has since changed his mobile phone.

47. He said that on one occasion he was crossing the road on his way to work and a car tried to run him over. He did not recognise the driver and nothing was said. He said on another occasion a car drove past and people were shouting threatening words at him. The Tribunal asked the applicant how he knew that it was a targeted attack and not a random traffic incident. The applicant maintained that the parked car accelerated towards him.

48. The applicant said there were no other incidents when he was threatened in Egypt. The Tribunal had to prompt the applicant and ask him if there were any other incidents when he was threatened. After being prompted the applicant provided evidence about his interaction with the Salafist man and the incident when he claims he was threatened with a knife.

49. The applicant said that once he met a Muslim man who sat next to him on public transport and started to talk about politics. He did not know the man but the man knew his name. The man offered him a job in [Country 1] and wanted to meet again. At first he did not agree then he agreed to meet with him. The man called him and he agreed to meet the man. The man showed him photos of the applicant and [Ms A] together. The man told him he has two options: either he will be killed or he will convert to Islam and marry. The applicant told the man that he was no longer in a relationship with the Muslim woman.

50. The Tribunal asked the applicant how the man would know his name and telephone number. The applicant maintained that his details were public because he worked at [Business 1]. The Tribunal asked the applicant why he believes meeting the man was not a random incident. The applicant said he believes he was being followed. The Tribunal told the applicant it found it unusual that the man was trying to assist him by warning him and at the same time was offering him a job. The applicant said the man was a Muslim from the Al-Nour party and was trying to get votes to secure seats in parliament and did not want any embarrassment. The Tribunal asked the applicant about his (the applicant’s) profile and if he was involved in politics in Egypt. The applicant said he had no involvement in politics.

1. The Tribunal told the applicant that it found it unusual that a politician from the Al-Nour party would seek out the applicant, a young man with no involvement in politics, because he was in a relationship with a Muslim woman. The applicant said that his relationship with the Muslim woman was forbidden in Egypt and if religious leaders found out they would seek revenge and it would affect their pride.

2. The applicant said he was able to travel to Australia because his uncle in Australia applied for the visitor visa. He did not tell his uncle about his problems.

   Findings

3. The Tribunal has found the applicant’s evidence about his relationship with [Ms A] to be credible and consistent with country information that confirms that Egypt is a socially conservative country where interfaith marriages are not generally socially accepted. For example DFAT report that parties to such relationships may experience discrimination within their families, faith groups and the wider community.[5] Children born of interfaith relationships suffer strong social stigma.[6] The Egyptian state does not officially recognise marriages between Coptic men and Muslim women. A Coptic man would need to convert to Islam for a marriage to a Muslim woman to be considered legitimate.[7] The Coptic Church generally only performs marriages where both partners are Copts. As there are no civil marriages in Egypt, Copts must marry through the Coptic Church.[8]

   [5] ‘Egypt: The Forbidden love of interfaith Romances’, British Broadcasting Corporation, 24 November 2014, CX1B9ECAB8921

   [6] ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.10, CISEC96CF13957; ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.9, CISEDB50AD4203

   [7] ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.9, CISEDB50AD4203

   [8] ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.9, CISEDB50AD4203; ‘Francis is not the only pope facing a divorce dilemma’, Crux, 29 June 2015, CXBD6A0DE17717

4. The Tribunal accepts that the applicant is a Coptic Christian citizen of Egypt who commenced a relationship with a Muslim woman called [Ms A] who he met at work in about 2012. The Tribunal finds however aspects of the applicant’s evidence about the threats he received in Egypt as a consequence of his relationship to be vague and lacking in credibility.

5. The Tribunal finds that since the applicant travelled to Australia his relationship with [Ms A] has ended and she has since married a Muslim man in Egypt. The Tribunal has had regard to the applicant’s evidence and finds that he has ceased all contact with [Ms A] and is now in a new relationship with an Australian citizen.

6. The Tribunal finds that the applicant kept the relationship discrete, did not disclose the existence of the relationship to his parents and there is also no evidence that [Ms A’s] parents were aware of their relationship. The Tribunal finds that the applicant has received no threats regarding the relationship since he arrived in Australia and there is no suggestion that [Ms A’s] family is embarrassed or ashamed about the relationship and would seek retribution. The Tribunal finds that both [Ms A] and the applicant have moved on with their lives.

7. The Tribunal accepts that the applicant’s relationship with [Ms A] may have caused him some stress when [Colleague 1] found out about the relationship. The Tribunal is prepared to accept that the applicant may have received some harassing telephone calls which caused him distress.

8. The Tribunal does not however accept the applicant’s claim that he was specifically targeted in two road-side incidents and that a man tried to stab him with a knife because he was in a relationship with a Muslim woman. The Tribunal found this aspect of his evidence vague, speculative and lacking in detail. The Tribunal notes that no personal threats were made during the incidents. He did not know the perpetrators and the incidents occurred in public places. The Tribunal finds the knife attack incident to be a random criminal act. The Tribunal also finds the road-side incidents were not targeted at him because he was in an interfaith relationship.

9. The Tribunal also had regard to the applicant’s claim that he was approached on public transport by a Muslim politician who located his intimate photographs on [Social Media 1], warned him about the consequences of his interfaith relationship and then offered him employment. The Tribunal finds the applicant manufactured this evidence. The Tribunal does not accept as credible the applicant’s claim that a complete stranger was able to identify him on public transport, know his name and have access to his personal photos which were kept private on [Social Media 1]. In making this finding the Tribunal has also had regard to the applicant’s profile as a young man with no political profile in Egypt. As a consequence the Tribunal does not find it plausible that the Islamic politician would seek to assist the applicant and offer him employment overseas in circumstances where he has also threatened to kill him under Sharia law. In the circumstances the Tribunal does not accept that a senior Islamic politician and his political party would feel embarrassed about the applicant’s interfaith relationship.

10. The Tribunal finds that the applicant has now ended his relationship with [Ms A] and she is now married to a Muslim man. The applicant left Egypt and arrived in Australia over four and a half years ago. No threats have been made to the applicant or his family in Egypt since he arrived in Australia. The Tribunal finds that it is mere speculation to suggest that if he returns to Egypt people will remember his relationship and seek to cause him harm.

11. The Tribunal is not satisfied that there is a real chance that if the applicant returns to Egypt in the reasonably foreseeable future he will face serious harm because he was in an interfaith relationship with a Muslim woman. The Tribunal finds that the applicant’s claim that he will face persecution because of his interfaith relationship is not well-founded.

12. Next, the Tribunal has had regard to country information and considered whether the applicant would face serious harm in Egypt because he is a Coptic Christian.

13. DFAT’s most recent report on Egypt provides the following information on Christians:

    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.

    …

    3.36 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.

14. The Tribunal has had regard to the applicant’s evidence that regardless of his past relationship with [Ms A], he fears persecution in Egypt because he is a Copt. The applicant referred the Tribunal to examples of harassment of relatives and of other persons in the past. He also referred to the bombings and destruction of Coptic churches in the past.

15. In assessing the applicant’s claims the Tribunal notes that DFAT provides the following background information about recent terrorist attacks on Christians in Egypt:

    In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark’s Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks. [3.21]

16. The Tribunal has had regard to the country information and accepts that terrorist acts have been perpetrated by extremist groups who target the Christian community in Egypt. The Tribunal accepts that the applicant may have had a friend who was killed in the 2011 New Year’s Eve bomb explosion that killed 21 Christians and injured more than 70 people.[9]

    [9] >

    The Tribunal finds however that the attacks although targeted are sporadic and isolated in nature. In assessing the claims the Tribunal also notes that it is reported that the Sisi government has shown significant support for the Coptic community.[10] The Sisi government has called for Muslim leaders to promote tolerance and acceptance[11] and has provided visible security around prominent Coptic churches. For example following the bombings in April 2017, the Sisi government instituted a three-month State of Emergency and declared the formation of a supreme council to combat terrorism and extremism.[12] Following the May 2017 attack on Copts in Minya, the government declared that the attacks ‘will not go unanswered’ and the military subsequently launched airstrikes on militant targets in Libya, which the government claimed were involved in the attack.[13] The government also announced that the families of those killed, as well as those injured in the attack, will receive monetary compensation.[14] Reports confirm that the Coptic Orthodox Church has expressed confidence in the efforts of the Egyptian state in protecting Copts against sectarian violence. In March 2017 the church issued a statement praising the efforts of authorities in defusing a sectarian incident in a village in Luxor.[15] Also in March 2017, the Coptic Pope said that Copts face problems but they are minor and should be dealt with case by case.[16] He said that the state is doing its best to secure churches, and that he could ask no more of the government in this regard.[17]

    [10] ‘Are Copts at risk because of their Sisi support?’, The New Arab, 14 March 2017, CXC9040663760

    [11] ‘2015 Report on International Religious Freedom – Egypt’, US Department of State, 10 August 2016, p.1, OGD95BE926698

    [12] ‘Analysis: Egyptians see failed security in church attacks’, CNN, 09 April 2017, CXC9040665529

    [13] ‘Egypt Coptic Christians: IS claims attack’, British Broadcasting Corporation, 27 May 2017, CXC9040668194; ‘Gunmen in Egypt Force Coptic Christian Pilgrims From Buses and Kill 28’, New York Times, 26 May 2017, CXC9040668190

    [14] ‘Egypt govt to compensate victims of Minya attack on Coptic Christians’, Ahram Online, 27 May 2017, CXC9040668195

    [15] ‘Egypt’s Coptic Church praises 'state efforts' to contain sectarian strife in Luxor’, Ahram Online, 30 March 2017, CXC9040664981

    [16] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474

    [17] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC904066474

17. Country information also confirms that not all Egyptian Salafists advocate or participate in violence. Salafists have typically refrained from political participation and focused on preaching their conservative religious ideas and engaging in social welfare activities aimed at changing society from below. In recent years Salafist political parties have been formed in Egypt, but they accept peaceful political action as a vehicle for change and reject the use of violence. While some Salafists supported Morsi, the main Salafist parties supported his removal.[18]

    [18] CXBD6A0DE15909: ‘The Future of Political Salafism in Egypt and Tunisia’, Carnegie Endowment for International Peace, 16 November 2015,

18. In assessing the applicant’s claims the Tribunal also accepts that the applicant has experienced some discrimination such as verbal abuse growing up as a Coptic man in Egypt. As detailed above the Tribunal has accepted the applicant received some anonymous harassing telephone calls because of his interfaith relationship. The Tribunal finds however that the discrimination experienced by the applicant does not amount to serious harm or significant harm.

19. The Tribunal also notes that the applicant was able to obtain tertiary qualifications and secure employment at [Business 1] which the applicant said employed both Christian and Muslim employees. The applicant has been employed at [Business 1] for five years and has been promoted during this time.

20. The Tribunal accepts that Islamic State in Egypt is increasingly targeting Coptic Christians particularly in far-off Upper Egypt. The Tribunal is not however satisfied that all Coptic Christians are at risk of being targeted by Muslims or the authorities in Egypt. The Tribunal finds that the current government is attempting to improve the security situation for Copts living in Egypt.

21. There is no evidence before the Tribunal that would suggest that Coptic Christians are denied the right to practise their religion by Egyptian law or government practice. Nor is there any credible evidence that the applicant would be prevented from actively participating in his church in his home area if he returned because of violence or threats from extremists. The Tribunal does not accept that there is a real chance that the applicant would be prevented from practising his religion and continuing to provide support to the poor Copts in his community through the Coptic Church.

22. In conclusion, the Tribunal has considered the applicant’s claims individually and cumulatively regarding his fear of harm because he was in a relationship with a Muslim woman and his claims about the situation for Copts generally in Egypt. Having regard to the applicant’s profile as an ordinary Coptic Christian, the Tribunal is not satisfied that if the applicant returns to Egypt in the reasonably foreseeable future there is a real chance that the applicant will experience serious harm because he is a Coptic Christian or because he was in a relationship with a Muslim woman before he travelled to Australia. The Tribunal finds that the applicant’s fear of persecution because of his religion is not well founded.

23. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

24. Having found that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

25. 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.

26. 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).

27. ‘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.

1. The Tribunal notes that the applicant’s complementary protection claims are the same claims and rely on the same facts as his refugee claims. For the reasons detailed above the Tribunal finds that the applicant’s relationship with a Muslim woman has ceased. The applicant and [Ms A] have moved on with their lives. They are no longer in contact. The applicant has now been living in Australia for four and a half years and is in a new relationship and [Ms A] has married another man. The applicant and his family in Egypt have received no threats because of the applicant’s past relationship with a Muslim woman.

2. As detailed above the Tribunal is not satisfied the applicant came to the attention or was threatened by a politician from the Al-Nour party. The Tribunal does not accept that the applicant was targeted in road-side incidents or attacked with a knife because he was in a relationship with a Muslim woman.

3. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that he will suffer significant harm because he will be targeted by Islamic extremists because he is a Copt who was in a relationship with a Muslim woman and/or because he is a Coptic Christian.

4. The Tribunal has had regard to the applicant’s qualifications and past and present employment and finds the applicant as a Copt is in a strong positon to find employment when he returns to Egypt in the future. The Tribunal has also had regard to the country information detailed above and finds that the applicant as a Coptic Christian is able to practise his religion if he returns to Egypt

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Christopher Smolicz
   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.

   …

   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 them 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

   …

   (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.

   …