1833892 (Refugee)

1833892 (Refugee) [2021] AATA 4182 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1833892
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Peter Vlahos
DATE:31 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 31August 2021 at 12.30PM
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian – discrimination – target of Muslim religious fanatics – credibility concerns – discrimination in education system/workplace – involvement with the reconstruction and building plans of his local church – alleged conversion and abduction of a local girl – delay in leaving country of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMMA (1998) 86 FCR 547
MIMA v Rajalingam (199) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347
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 on 16 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Egypt, applied for the visa on 8 March 2018. The delegate refused to grant the visa on the basis that the Protection visa application did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 19 November 2018.
A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled for the 29 July 2021.
The applicant was assisted at the hearing by an interpreter in the Arabic and English languages and was also represented by his Solicitor and migration agent.
The applicant provided no witnesses for examination at the hearing or any new information concerning his claims for protection.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations owing to [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Arab Republic of Egypt and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
On the basis of the above-mentioned evidence before the Tribunal, the Tribunal further accepts the applicant’s identity as is claimed in these proceedings.
The Applicant’s Departmental file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Applicant’s migration history
The applicant was granted a [Student visa] on 22 January 2018. [In] February 2018 the applicant arrived In Australia as a holder of a [Student visa]. On 15 March 2018 the applicant applied for Protection visa (XA-866).
EVIDENCE AT THE HEARING
[The applicant] was born on [date] in Al Sharqiyah-Al Zagazig, Egypt. He has family living in Egypt which consist of his elderly parents and [number of] younger [siblings]. He completed all of his primary and secondary education in Egypt and also successfully attended University – completing a Degree in ‘[Discipline 1]’ (the applicant provided no evidence of his studies or qualifications to the Tribunal). He is currently working in Australia as [an occupation].’
The applicant confirmed for the Tribunal that his arrival in Australia was procured by a [Student visa] which was the subject of sponsorship by a Christian [group]. The applicant explained that the purpose of his ‘studies’ was to familiarise him with the different approaches towards understanding the Christian ‘faith’.
The applicant’s claim for Protection
The Tribunal noted that the applicant made the following written claims in his application for Protection visa which was submitted to the Department:
§ The Applicant is an active member in the Coptic Orthodox Church, and he has been all of his life.
§ One of the tasks was the building of a wall and bathroom in his local church which was required because the existing wall and facilities needed repair. The applicant’s role was to help the Priest, and to oversee the tradesmen who were constructing a new wall and bathroom.
§ The Muslim community in the area were outraged by this proposed development and threatened the Applicant and his community and warned them of consequence if the building continued.
§ The applicant and others continued with the building project.
§ As a result of this, all (including the applicant) began receiving constant threats and this included their families.
§ Matters escalated significantly halfway through the project, shots were fired at them, Molotov cocktails and the walls (newly constructed) were knocked down. Many people were injured in this incident, but the applicant was lucky to have survived without injuries.
§ All began to seriously fear leaving their homes or to attend Church.
§ One day when the applicant left for work, he approached (in his car) only to find the words “Allah w Akbar” were engraved on the vehicle.
§ The applicant was outraged but not surprised, as it was not the first time something like this happened. He started the car and drove only five minutes before it began to overheat suddenly.
§ Someone came to inspect the vehicle and repair it and they discovered that the pipe that connects the water pump to the engine had been curt off.
§ There were many occasions where children in the street would throw rocks at the applicant and members of his family. This was the state that he and his family lived in. Constant fear, police and army ranks.
§ Even at work the applicant reminded that he was what they regarded as an “infidel”. He had trouble obtaining employment close to his home and was positioned far away from his home and forced to work for a radical Muslim. He was always aggressive with him, he caused him countless problems at work, making it often unbearable for the applicant. His employer would provide the applicant with warnings and single him out saying that he (the applicant) had not followed the correct processes when in reality the applicant had done nothing wrong.
§ Muslims have a genuine and deep-seeded hatred for the Coptic Orthodox Christians.
Before, the Departmental interview the applicant’s representative provided the following additional detailed information:
§I am an active member in the Coptic Orthodox Church, and I have been all my life. Following my Secondary School studies, I wanted to be more than just a parishioner in the church, so I became what is known in my church as a ‘servant’, and I would serve in the church as much as I could. I have many family members that are part of the clergy in Egypt, whether they be priests or monks, so naturally, I always wanted to serve and be an active part of the church. After preparing for the responsibility, in 2007-2008 I became a servant in the church. I was very active and loved the service. I trained and served at a parish called [Parish 1] (which loosely translates to ‘[specified meaning]’), and I was very determined to serve in whatever way that I could so I would travel for sometimes one hour to get to this church to learn to be the best servant. During this training period, I would also attend and serve in the neighbouring villages where they did not have the facilities to hold active services. In these circumstances, we would arrange for one or more of the servants to attend the village and arrange for the local Christian families to gather in one house for Sunday school, Bible study, or other religious gatherings. Despite the desperate need for churches, it is very difficult, and almost impossible, for new churches to be established in Egypt because it causes local chaos and disruption, and makes the Islamic Councils extremely angry, as they hate seeing new churches in what they believe should be an entirely Islamic nation. They regard us Christians as infidels.
§In 2009, a new church was being opened in [Location 1], called [Church 1], which was permitted on the basis that it was a building to be used for service only – that is, the actual church was erected on the inside of this building so that from the outside, no one could clearly tell that it was a church for worship. There were liturgies held inside in secret so that the parish would not get in trouble or be harmed. My uncle, [Father A], was the priest in charge of this church, so he sent for me to help him in getting the church started and to be a servant there. I mostly stayed with him in his home during the time of service and would return home during the other times.
§Everything was going well, and no one had discovered that it was being used as a church on the inside of the building, until November 2010. This was the stage of construction where the external sheets and coverings where removed and you could see that there were domes at the top of the building. It was at this point that the local Islamic extremists began to notice that Christians were entering this building with clear domes and discovered that it was being used as a church. This made them extremely enraged and they began attacking the church. First, it was small attacks, sometimes just verbal, but then it began to escalate. Eventually, the locals became so enraged that they rallied together to attack the church and became very physical and threw stones at the church and the people. I was very lucky to survive this level of persecution because just before this final major attack, my mother called my uncle and requested that I return home, out of fear that the violence would get worse and I would be harmed. She was right, because the attacks did escalate, and I was lucky to avoid death.
§Following this incident, the security forces came, but instead of protecting us and protecting the Church from what was happening and what these attackers were doing to the Christians, they asked the church on what authority they were building the church in the first place, and requested to see papers. However, the church could not provide these required papers and statements, because to build a church, you would have to get permission from the President of the Republic, which is virtually impossible, and could take years to obtain. The church could only show them the paperwork that the building was being used as a community hall for regular services, such as Sunday school, and not for use as a church for sacraments (liturgies and baptisms, for example).
§Not long afterwards, however, the church was attacked again by extremists, who were even more angry than before. They opened fire on the church and killed two Coptic Christians. Instead of the security forces protecting us from the extremists who refuse to have an ‘infidel’ church built in ‘their Islamic country’, they made the situation worse by wanting to reprimand the church and demolish it. I was heartbroken by all of this and by the fact that people had to die because they simply wanted to practice their religion. It was not fair that the hard work of our community would go to waste and have casualties because of the intolerant and inhumane extremists.
§My mother was adamant that I never return to serve at that parish and refused to let me go back there. She suggested that I serve in my own area, so I did, despite my love and admiration for the church where I served with my uncle. I knew in my heart that I could not return there for my own safety. Nonetheless, I was still very afraid for my uncle who was, and is currently, serving at the same church, because he was responsible for the building and the church there. I remain afraid for him until this very day.
§During the end of 2010, when I returned to my own diocese in Zagazig, I began going to the church close to my home, named [Church 2]. This church was about [number] minutes away from my home. I eventually began serving in this church, although I noticed the local persecution was also occurring at this church. There were several Islamic mosques very close to the church and they would play they call to prayer, as well as their actual prayers, very loud on the speakers so that it would be heard across the whole area.
§In the church, we would make sure that all youth and children activities were indoors because the church was very afraid that if there were activities held out in the open, then there would be a much higher chance that there would be attacks from the Islamic extremists and the parishioners and youth could be harmed or killed. This was the daily fears that we each held.
§In 2012, there was another incident that occurred. There was a family that I knew in Egypt, whose daughter I would serve in Sunday school. Her name was [Ms B] and she was about [age] years of age at the time. Her father had converted to Islam, and he betrothed [Ms B] to a man named [Mr C]. She was forced to convert to Islam, and they burnt off the traditional Christian cross tattoo off her [body part]. She was not approving of this whole situation, so she managed to get away from her father and fled to her mother’s Christian family in Minya. However, when her father and [Mr C]’s family found out that she was gone, they accused the church and the priest, [Father D], of kidnapping her. During this time, I was involved in helping the church refurbish the walls and renovating the church bathrooms. While we were working, those who accused the church of kidnapping [Ms B] attacked the church, throwing rocks and setting whatever they could on fire. They attacked the priest’s house, which was directly in front of the church, and attempted to burn it down, although they could not in the end. They kept yelling insults at us and demanding that we bring back [Ms B] to them, calling us infidels and shouting “Allah Akbar” repeatedly. [Ms B] later appeared in the media announcing that she does not want to be a Muslim and that she was not kidnapped by the church or anyone. Despite this, they refused to let her be, and there was a subsequent meeting held by the local Islamic elders and decided that she should be placed in an orphanage until she turns 18 years of age.
§Following this, my family and I knew that we could no longer stay in the house we were living in, which was only streets away from the church, as it was completely unsafe. We left everything that I had grown up knowing and fled to another area. We built our own house there. However, the situation did not improve at all. Due to our Christian beliefs, the Islamic extremists persecuted us there, up until the final months before I arrived in Australia. Multiple times, they cut our power lines from outside the house, and when we confronted them about it, they were enraged and pulled away the power lines completely. The neighbours would also throw buckets of dirty water onto my car. Their hate was so strong that one time I found that they had keyed the words “Allah Akbar” on my car, which is a common Muslim saying which translates to “Allah is the greatest”. We would have locals, even very young Muslims, throw dust and sand at my car or hit my car as I drove past in the local area.
§About one month or so before I arrived in Australia, I returned to my car at night to drive home and found that my car lights had been tampered with and I could not light my way. I was forced to drive home in the dark which is very dangerous in Egypt, and I feared for my life. This happened to me twice while I was in Egypt. Not long afterwards, I was again driving my car, not knowing that it had been tampered with. There were pipes or chords that had been cut which caused the engine to overheat and there was a lot of smoke that came out of it. I quickly stopped the car and ran from it, afraid that it was going to explode, and called my mechanic. He advised me that there were clear signs of tampering and that this could not have happened naturally. I knew immediately that this was just another part of the pattern of persecution that was ongoing and becoming very common in my life.
§also endured persecution during my university days. Whilst I studied [Discipline 1], I soon realised that I was treated differently by the [teachers] there simply because I was a Christian. For example, there was a [teacher] there [who] was [in] the [specified faculty] at the university, and who refused to answer my questions about the work during practicals. I was one of the only Christians in my cohort and this [teacher] clearly held prejudices against Christians and did not want me to excel in my field. When I would ask a question to clarify a point, he would tell me that it was not important for me to know, although he would answer all of the questions of my Muslim classmates.
§The harassment and discrimination based on our religion and gender considerably increased during the last few years of the Mubarak regime. My family thought it is very dangerous for us to stay in Egypt but we couldn’t leave Egypt at this time because our mum was very sick and we were too scared to leave the rest of our family behind and put them at risk. However, the situation became very dire. Our mother passed away in July 2011, which was a few months after Hosni Mubarak stepped down and the Egyptian “Revolution” began. Because of this, we thought the situation would get much better, so when our mother passed away, we stayed in Egypt. However, nothing improved, and on the 9th of October 2011, Coptic Christians were massacred in Maspero by armed forces. 28 peaceful protestors were killed, and 212 people were injured. We had thought that after Mubarak was gone, we would be safer and the law would be enforced, but it became more dangerous. Then the harassment and discrimination escalated remarkably during the Muslim brotherhood era and never got better even under the current regime.
§To this day, my family that is still in Egypt suffer persecution and hardship simply because they are Christians. I tried to move to another part of Egypt to seek safety but even that was extremely hard for me. The persecution will follow me no matter where I am in Egypt, as I have already seen.
I do not feel like I can return to Egypt, because I know that not only will I be mistreated greatly for my religious beliefs, I will be made to continue living with no support or protection from the police or the government. I cannot sue without being warned that I will be considered as ‘insulting Islam’ and cannot exercise my basic human rights. Egypt has become an unbearable prison and I fear that one day, the extremists will cross a line and I will be fearing for my life.
§I seek protection from the Australian Government from the Muslim extremists who have repeatedly attacked and harassed me, my family, and my church. All I wish is to be able to live a safe and happy life and be awarded the basic human rights that every person deserves. Please help me.

The Tribunal asked the applicant whether the claims made by him to the Department required any amendment, change, variation, or addition. In response, the Tribunal was told that the applicant had provided all issues to the Department and that it was correct for the Tribunal to consider those claims at this hearing.
The circumstances which led the applicant to come to Australia
The applicant told the Tribunal that he was forced to leave Egypt for two main reasons – (1) he was facing constant “discrimination” in his life because he was a ‘Coptic Orthodox Christian’ and (2) his desire to openly serve and worship his ‘religion’ and ‘Church’ was inhibited by Muslim fundamentalist.
The applicant went on to tell the Tribunal that he “had lived with discrimination while at school (at a very young age) and when he attended to further studies at the local university. In particular, (according to the applicant) when he was at school, his teaching was always ‘subjected to the teaching of Islamic studies’ even though he was a known Coptic Christian. As a result of this ‘compulsion’ the applicant would often ‘make errors’ in his study of the Islamic holy book, the Koran and this in turn provoked open criticism and ridicule from his teacher and from his fellow (Muslim-majority) students. The applicant went on to tell the Tribunal that this ‘discrimination’ in the classroom caused him to be ‘failed’ for ‘some subjects’ which made him ‘loose an entire academic year’ (the applicant provided no time line as to when this incident happened).
The applicant told the Tribunal that this was situation at school which he faced, was difficult but his love of education allowed him to continue with his education and eventually succeeded in entering the local university and completing successfully his [Discipline 1] degree.
The Tribunal asked the applicant to explain the problems he had experienced as a Coptic Orthodox Christian. The applicant told the Tribunal, that on or about 2007-2008, when ‘he finished his studies at high school’, he began his ‘preparation’ in order to become a ‘servant’ of the (his local) church and parish. The Tribunal was told that this position provided the applicant (with church guidance) to participate in the religious tuition of others within the church’s precinct of pastoral activities. The position also allowed him to carry out ‘Sunday-school lessons’ and ‘to assist’ with tuition of students at the local primary school.
The applicant told the Tribunal that his position of ‘servant of the Church’ also enabled and he was ‘responsible’ for church ‘matters’ in remote districts where other Coptic Orthodox Christians lived. In such areas, the applicant told the Tribunal that he had the responsibility for the (spreading) of the Christian ‘catechism’. In other words, helping Christians to understand better the Coptic Orthodox Church’s teachings. This work caused him to have issues with the majority Muslim population of these areas who openly resented the ‘Christian presence’.
This work lasted (according to the applicant) from 2007 till 2011.
The Tribunal was told that ‘everything’ that the applicant ‘did or said’ was always sanctioned by the administration of his Coptic Orthodox Church religious hierarchy.
The applicant then made reference to the wall and construction of the bathroom issues. He recalled for the Tribunal that his problem with this issue occurred in 2012 (February). The Tribunal was told, that for many years, the applicant’s church had a very dilapidated bathroom facilities which did not service properly the Church’s parishioners. It required wholesale reconstruction. With this ‘reconstruction’ a new bathroom/toilet precinct would be built and a more secure exterior wall. The Church and its local Christian community supported the project and the applicant (his evidence) was given the responsibility to coordinate the entire project. Once plans had been approved, the construction commenced in earnest. Nevertheless, this community works project did not sit favourably with the majority-Muslim community. In time anger erupted between the two communities and while construction continued the buildings and wall suffered vandalism. Overtime, the project was eventually commenced but the applicant (in his evidence) claimed that his overseeing of this project caused him to become the victim of fanatic-Muslim attacks, and threats, which were of a daily occurrence.
To make matters worse, amidst this local sectarian acrimony, Muslims accused the Coptic Christian minority in the area of involvement in their community’s affairs. The applicant told the Tribunal that sometime in 2012 an incident occurred. There was a family the applicant knew whose daughter the applicant ‘taught’ at the Sunday school he was involved with. The girls name, (according to the applicant) was ‘[Ms B]’. He described her (at the time) being [age]-years-of-age. Her father (according to the applicant) had converted to Islam and he betrothed [Ms B] to a Muslim called [Mr C]. In time, the girl was ‘forced to convert to Islam’ and had (according to the applicant’s evidence) ‘burnt the Christian cross tattoo from her [body part].’ The girl, the applicant told the Tribunal did not consent to this conversion and fled to her mother’s Christian family in Minya. When her escape was found out by her father and her future husband’s family, they accused the local Church and priest, [Father D], of kidnapping her. As a result of these accusations tensions increased and the church was attacked (where the applicant was working on the renovations). The applicant also told the Tribunal that the priest’s house was attacked, and an attempt was made to burn it down, but this attempt failed.
The applicant recalled that ‘insults’ were ‘yelled at us’ and demands made ‘to bring back [Ms B]’. The crowd (according to the applicant) accused them of being ‘infidels’ and repeatedly shouted ‘Allah Akbar’.
The applicant went on to tell the Tribunal that the girl called [Ms B] later appeared in the local media and declared ‘that she did not want to be a Muslim’ and that she ‘was not kidnapped by the church or anyone else.’ The applicant recalled that these declarations in public by the girl involved, the local Muslim fanatics ‘refused to let her be’ and ‘there was a subsequent meeting held by the local Islamic elders [who] decided that she be placed in an orphanage until she turned 18-years-of-age.’
According to the applicant, following this incident, his family and the applicant ‘knew that they could no longer stay living in their home’ which was ‘very close to the church.’ The applicant and his family ‘left everything’ and ‘fled to another area.’ Regardless of this move, the situation for the applicant and his family did not improve. Due to the applicant’s and his family’s ‘Christian beliefs, Islamic extremists persecuted them there…’ and ‘until’ the applicant left Egypt and ‘arrived in Australia.’ The ‘attacks’ endured by the applicant and his family were numerous – for example, Islamic fanatics ‘cut our power lines outside [the] [applicant’s] house’. Islamists’ hate locally, was ‘so strong that on one occasion [they] had keyed the words “Allah Akbar” on my [the applicant’s] car.’ On other occasions, further vandalisms occurred on the applicant’s and family’s property.
On another occasion, the applicant told the Tribunal that he ‘returned to my car to drive home and found that my car lights had been tampered with.’ Not long afterwards, while driving his motor vehicle, he realised that the ‘pipes and chords had been cut which caused the engine to overheat…’ These incidents made the applicant ‘realise’ that they ‘were just another part of the pattern of persecution that was ongoing and becoming very common’ in his life.
The Tribunal asked the applicant if, as a result of these incidents, did he report them to the local police. The applicant’s response was that these incidents were reported to the local police and the police came – the incident was reported but [according to the applicant] the police seldom involve themselves in ‘disputes between Islamists and Coptic Christians’.
The applicant also told the Tribunal that he faced ‘issues’ because of his ‘religion’ at his place of employment, a ‘government-administered [organisation].’ The Tribunal was told that his work as a [Occupation 2] was always questioned and the subject of criticism by his seniors and this was done because he was a Christian. On one occasion, the applicant spoke of being the ‘subject of an investigation’ by the management of the government-run [organisation]. The applicant described the ‘investigation’ as one of an alleged ‘misconduct’. The Tribunal asked the applicant whether the case of misconduct against him had been prosecuted. The Tribunal was told by the applicant that ‘there was a prosecution’ for misconduct held. The Tribunal asked for ‘documents’ – evidence of the misconduct proceedings. The applicant told the Tribunal that there ‘were no formal documents’ which he could provide as evidence.
The applicant told the Tribunal that as result of this accusation of ‘misconduct’, though he remained at the same government-run [organisation] until 2018, he was subjected to ‘doing different work’ and had to attend work at another premises which was ‘nine (9) hours way from home’ which made it difficult for the applicant to fulfil his employment obligations.
The Tribunal asked the applicant whether what had occurred to him was because he had a public profile as a Coptic Christian? The applicant told the Tribunal that ‘I cannot tell [the Tribunal] if I have such a profile.’ He went on to tell the Tribunal that ‘everyone knows me to be a Christian and what work I did at my local church.’ The applicant also emphasised his work as a Sunday-school teacher as contributing to his local notoriety which contributed to his being targeted by local Islamists.
The Tribunal asked the applicant if in his absence members of his family have been persecuted. The applicant told the Tribunal that ‘they (his family) are all suffering…’ The applicant described his parents as ‘old’ and went on to state, that other members of his family are ‘seeking ways to leave’ Egypt. The applicant told the Tribunal that his ‘middle [sibling]’ is ‘married and is a [Country 1] citizen’. The applicant’s ‘younger [sibling]’ is currently ‘learning German and is planning to also leave.’
The Tribunal asked the applicant to describe – what type of persecution has his family suffered recently necessitating the need for them to leave Egypt? The Tribunal was told that ‘all Christians are subject to attacks from Muslims’. Christians are ‘harassed in the streets…’ and when they are in their homes the ‘water, power and telephone lines are cut…’ making their life very difficult and subject to danger. Also, elderly Christians are vulnerable to attacks from local Islamists.
The Tribunal was told that though there has been regime change in Egypt – the Morsi government being replaced by a coup and elections by the Sisi government, the majority of the population is Muslim and the Muslim faith always ‘dictates’ the ‘attitudes of Muslims towards others -especially Coptic Christians.’ The applicant ‘acknowledged’ the current Sisi government has ‘done well’ but the ‘situation in Egypt is still difficult…’ According to the applicant Christian churches have been vandalised and ‘oppression of Christians is still going on.’ The applicant told the Tribunal, that the official position of Egypt was to ‘show to the world’ a very different situation to the ‘actual one’ that continues to be the case in Egypt today – Christians are still being targeted and killed despite the ‘measures taken by the government.’
The Tribunal was asked – why did he not decide to leave Egypt earlier? Specifically, the incidents described by the applicant had occurred in 2009-2012 but he left Egypt in 2018. The applicant’s response was that he wanted to leave earlier as soon as 2015. The applicant stated that he ‘wanted to leave Egypt for Canada…’ The applicant explained that ‘he wanted to consider everything’ and what he decided in the end ‘that would be the end of the line for me…’ The applicant feared that his application for a visa ‘would be rejected’.
The applicant was asked – why did he fear returning to Egypt in the reasonably foreseeable future? The applicant stated that ‘…if I go back to Egypt, I will go back to death…’ The applicant said that he would (like before) face economic difficulties and ‘discrimination’. It was very difficult for him, he recalled to ‘work in Egypt as a ‘[Occupation 2]’ because of his religious beliefs. In Australia, it is different for the applicant, he is ‘happy’ even though he works in a [different occupation] and not in his profession.
The applicant also told the Tribunal that while here in Australia, the applicant attending the local Coptic Orthodox Church and participates in social and religious events held by the local church authorities. The applicant told the Tribunal that he attends [Church 3] – [address redacted].
Written submission of the applicant’s behalf by his lawyer and registered migration agent
The applicant’s lawyer/and registered migration agent provided the following submissions to the Tribunal:[1]
[1] see AAT File – submission, [Law Firm 1], prepared by [the] solicitor for the applicant.
§The applicant’s claims and the evidence provided were not adequately assessed. The [delegate’s] decision is riddled with typographical and factual errors and had ‘appeared hastily written.’
§From the outset, the delegate erroneously refers to the applicant’s home country as ‘Iran’ instead of Egypt. Similarly, the delegate referred to the applicant’s home village as ‘Zazaig’ rather than ‘Zagazig’.
§With respect to the incidents of 2012 which form part of the applicant’s claims, the delegate repeatedly misspelt ‘[Ms B]’ as ‘[variant spelling]’ and states that she fled to relatives in ‘Elmmniya’, which ought to be ‘El-Minya’, or commonly referred to as just ‘Minya’ which is a province in Egypt.
§The applicant maintains that relocation is not possible within Egypt and that persecution against Copts continues throughout the country.
§Further, in relation to the delegate’s conclusion that there is no connection between the applicant and the area of Minya, it is submitted that the applicant was a member and servant of the Coptic Orthodox Diocese of Zagazig and Minya El-Kamh.
§The delegate stated that the applicant failed to raise the circumstances surrounding [Ms B] in 2012 and stated that when the opportunity to clarify the omission, the applicant provided an unconvincing response.
§The delegate made an adverse finding as to the applicant’s claims that he was a target of frequent attacks, taunts of death and property damage. This adverse finding was on the basis that the delegate held the opinion that if a person was to successfully target a victim, they would take greater measures than verbal threats and property damage. The submission was made that there are several issues with this finding. First, that the delegate erroneously takes the view that there is only one prescribed way that a person is to target a victim. It was submitted that it was not for the delegate to speculate or to purport to know the preferred means and motive of an attacker. Secondly, the delegate minimises the applicant’s claims that the attackers intended to seriously harm or kill him by tampering with his vehicle, referring this in the [decision] as mere ‘property damage’. It is clear that the attackers intended to seriously harm or kill the applicant by cutting his engine/coolant connector, and it be discounted as mere property damage.
§The applicant experienced a direct threat to his life when his vehicle was compromised and any reasonable person would share the same genuine and well-founded fears for their life, as the applicant experienced.
§The delegate questioned why the applicant opted to travel to Australia rather than to a different city or a nearby country.
§The applicant it was submitted would face persecution throughout Egypt.
§The applicant’s claims are compounded by his strong membership and affiliation with the Church in Egypt, and the persecution he has faced as Copt and servant in the Church. The applicant submits that the 2019 DFAT Report which contains the latest country information confirms that the state cannot guarantee the applicant’s safety. The information provides an indication as to how much a strong presence cannot provide safety so as to eliminate ongoing attacks in Egypt. Muslim extremists groups continue to operate throughout Egypt with some extremist groups “penetrating into governmental and police forces.”
§The applicant submitted that since April 2017, despite the declaration of a state of emergency by the Egyptian government, sectarian violence has been on the increase and the Copts have suffered horrendous casualties and deaths as a result of who they are and what they believe in regardless of the assurance and willingness of the Egyptian state to protect them.
The Tribunal also took note of the attachments which were appended to the submission which included translated articles in support of the claims regarding [Ms B] and the translated letter from [Church 1] in [Location 1] in support of the applicant.[2]
[2] See AAT File for attachments to Solicitor’s submission
COUNTRY INFORMATION – EGYPT – COPTIC CHRISTIANS – LEGAL RIGHTS – COMMUNAL VIOLENCE – DISCRIMINATION AND STATE PROTECTION
Coptic Christians
The US Department of State’s (USDOS) 2014 Egypt International Religious Freedom Report notes that:
Approximately 90 percent of the population is Sunni Muslim and approximately 10 percent Christian. The majority of Christians belong to the Coptic Orthodox Church. Other Christian communities together constitute less than 2 percent of the population and include the Armenian Apostolic, Catholic (Armenian, Chaldean, Greek, Melkite, Roman and Syrian), Maronite, Orthodox (Greek and Syrian), Anglican/Episcopalian, and Protestant churches, which range in size from several thousand to hundreds of thousands…Christians reside throughout the country, although the percentage of Christians is higher in Upper Egypt and in some sections of Cairo and Alexandria.[3]
[3] 2014 “Report on International Religious Freedom – Egypt”, US Department of State, 14 October 2015, OGD95BE926000
Australia’s 2015 DFAT Thematic Report on Egyptian Copts stated in general, the security situation for Copts had improved, particularly for people in urban areas, since July 2013:
The decrease in general law and order in Egypt in the years following the January 2011 revolution contributed to a rise in crime and civil disorder throughout the country at that time. The police have actively restored their presence and authority since the July 2013 military intervention and the election of President Sisi…[4]
Despite occasional incidents, a more substantial police presence in urban areas has enabled Copts to live there in greater security. The level of police presence in rural and poorer areas is generally less than in the cities, and as a consequences Copts are less safe in these areas.[5]
DFAT assesses that on a day-today basis in urban areas, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances. However, societal discrimination may impact on the level of protection offered by individual security officials.[6]
[4] DFAT Thematic Report: ‘Egyptian Copts’, Department of Foreign Affairs & Trade (DFAT), 24 November 2015, CISEC96CF13957.
[5] DFAT Thematic Report: ‘Egyptian Copts’, Department of Foreign Affairs & Trade (DFAT), 24 November 2015, CISEC96CF13957.
[6] DFAT Thematic Report: ‘Egyptian Copts’, Department of Foreign Affairs & Trade (DFAT), 24 November 2015, CISEC96CF13957.
Current political context

According to the 2017 DFAT Country Report, released on 19 May 2017,
Egypt experienced a major decline in law and order in the wake of the 2011 Revolution, leading to a sizeable increase in violent crime, civil unrest and terrorist attacks. The Sisi Government’s strong emphasis on internal security has largely restored general law and order throughout Egypt….
Since 2016, the Islamic State terrorist organisation has claimed responsibility for a series of major attacks targeting Coptic Christian churches. On 11 December 2016, an Islamic State suicide bomber targeted a church service in Cairo, killing 29 and injuring 49. On 19 February 2017, a group calling itself “IS EGYPT” released a video calling for the targeting of Coptic Christians. Two major attacks against Palm Sunday church services occurred on 9 April, both claimed by the Islamic State. The first attack occurred in Tanta, killing 27 and injuring over 70. The second occurred in St Mark’s Cathedral in Alexandria, the historical seat of the Coptic Pope, killing at least 16 and injuring 66. Pope Tawadros, head of the Coptic Church, was delivering a service at the cathedral at the time but escaped unharmed. In addition to the to the series of attacks on churches, around 154 Christian families fled the northern Sinai town of al-Arish in January/February 2017 after seven Coptic Christians were reportedly killed by Islamic State-affiliated militants. The Grand Imam of al-Azhar strongly condemned the church attacks, while a faction of the Brotherhood also issued a statement of condemnation.
In response to the Palm Sunday bombings, Sisi issued a Presidential Decree on 9 April 2017 declaring a nation-wide state of emergency, the first under the 2014 Constitution…Sisi also proposed the establishment of a Supreme Council to combat Terrorism and Extremism, which would consider new powers for police and intelligence investigators and allow for the fast-tracking of terrorism cases through the court system.[7]
[7] DFAT Country Report: ‘Egypt’, Department of Foreign Affairs and Trade (DFAT), 19 May 2017, CISEDB50AD4203, at pp. 7-8.
Communal violence
In relation to communal violence, DFAT states the following:
Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. High-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya. …
Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. However, lower-level Church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims.
DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.[8]
[8] Ibid, at p.12.
Discrimination
Although significant community tensions remain in some areas of Upper Egypt (particularly in Minya), there have been substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Coptic Orthodox Christians. DFAT assesses that “…discrimination faced by Christians in Egypt is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location… [S]ome Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means.”[9]
[9] Ibid at p. 14.
State Protection
In urban area, the state has a capacity and willingness to provide protection to Copts, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas. DFAT assesses that, under the Sisi Government, the security services see it as being in their interest to be responsive to Coptic grievances.[10]
[10] ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade (DFAT), 30 March 2017, CISEC96CF13957, at p. 15
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.[11]
[11] ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade (DFAT), 24 November 2015, CISEC96CF13957, at p. 15.
Also, in March 2017, the Coptic Pope said Copts face problems but they are minor and should be dealt with case by case. 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.[12]
[12] ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017, CXC9040664748.
Risk Profiles
In the country guidance case of MS (Coptic Christians: Egypt CG [2013] UKUT 611 (IAC) (3 December 2013), the United Kingdom Upper Tribunal found that Coptic Christians in Egypt were not at a general risk of persecution or serious harm. Although this case is not binding this Tribunal, and the political, security and social situation for Copts has improved since that decision was made, the risk profiles it identified for individual Copts who may attract a real risk of persecution are worthy of consideration. Those profiles are: (1) converts to the Coptic faith, (2) individuals who are involved in construction or reconstruction/repair of churches that have been the target for an attack or attacks, (3) those accused of proselytising where the accusation is serious and not casual and (4) those accused of being physically or emotionally involved with a Muslim woman where the accusation is made seriously and casually.[13]
[13] ‘Country Policy and Information Note: Egypt: Christians’, UK Home Office, 21 November 2016, OGD7C84D91, at p. 6.
Further consideration was given by the Tribunal to the DFAT Country Information Report on ‘Egypt’ dated 17 June 2019:
Construction and Restoration of Churches
3.17 Church building is one of the most sensitive communal issues in Egypt. It has traditionally been very difficult to build a new church in Egypt, as local authorities have imposed convoluted processes to request permission and then ultimately refused the building permit. In contrast, the law does not stipulate any government role in reviewing the number or size of mosques, and no approval is required for mosque renovation. DFAT understands that there are approximately 2,800 registered churches throughout Egypt, compared to nearly 110,000 mosques.
3.18 In August 2016, the parliament passed law 80/2016 required by Article 235 of the constitution to allow Christians to build and renovate churches. The law requires the size of a church to be ‘commensurate with’ the number of Christians in the area. Because there are no official statistics in relation to the size of religious communities, determining the size of local Christian communities is difficult and most likely arbitrary. The power to approve requests is exercised by local governors, who must respond to a request to build or renovate a church within 120 days. Refusals must include a written justification. There are no appeal mechanisms.
3.19 Local contacts have reported that the 2016 law was welcome, but that implementation at the local level had been problematic in some areas. These contacts reported that the Coptic Church had presented requests for over 2,500 existing unlicensed churches and affiliated buildings following the passing of the law, but (as of October 2018) authorities had only approved around 200 applications. Local sources report that authorities had refused to grant permits in sensitive areas (including the Upper Egypt cities of Minya, Luxor, and Esna) due to strong opposition from local Muslims, and had closed up to 12 churches in these cities in defiance of the new law. In less sensitive areas, however, authorities had granted permits for around 50 new churches to be built and had made large areas of previously uninhabited land available. The Ministry of Housing also reportedly issued an order in January 2018 permitting Christians to practice their religious rites at unlicensed churches pending the legislation of their status. Local media and some international religious publications have reported that the government has recently approved the construction of up to 170 new churches. President Sisi inaugurated a new cathedral outside Cairo in January 2019 (the largest cathedral in the Middle East).
3.20 The government has rebuilt a number of churches and other church-owned properties destroyed or damaged in mob violence in 2013. The Saints Peter and Paul Church in Cairo was also repaired after a December 2016 suicide bombing that killed 29 people. The government has funded a church in al-Our village in Minya in honour of 20 Copts beheaded by an Islamic State-affiliated militant in Libya. In Alexandria, the main synagogue is undergoing extensive renovations paid for by the Egyptian Government (estimated USD $5 million) with a renovation team comprised of technical specialists.
Terrorist Attacks on Christians
3.21 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.
Communal Violence
3.22Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. The large-scale anti-Christian violence that occurred in 2011 and 2013 notwithstanding (see Security Situation), high-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
3.23A general breakdown in law and order nationwide occurred in the years following the 2011 Revolution, peaking in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. On these occasions, Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools, and private property. A November 2014 government report into the anti-Christian violence found that 29 people had died in communal-related killings, 52 churches had been completely razed, another 12 damaged, and numerous Christian-owned properties destroyed. Most, but not all, of the incidents were marked by a slow police response, which may have been in part the result of police and security personnel being otherwise engaged in protecting government institutions. Large-scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years.
3.24The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya. In one particularly high-profile incident in May 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine.
3.25Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. In December 2018, the government announced it would form a higher committee tasked with developing a general strategy to prevent and confront communal incidents. While acknowledging Sisi’s personal engagement on the issue, Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.
3.26.1DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.
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 (see Security Situation). 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.
State of Emergency
Finally, Article 154 of the Constitution (2014) grants the president the power to declare a nation-wide state of emergency after consultation with Cabinet and with the approval of Parliament. President Sisi declared a state of emergency on 9 April 2017 (immediately following the Palm Sunday bombings), which Parliament approved unanimously two days later. The government has subsequently issued a number of extensions to the state of emergency, most recently for a period of three months commencing on 25 April 2019. Article 154 stipulates that the maximum time allowable for a state of emergency is three months, extendable once for an additional three-month period by a two-thirds majority parliamentary vote. The government has effectively circumvented this provision by letting the state of emergency expire once it has reached its six-month maximum, allowing an interlude of two to three days, and then declaring another state of emergency.

For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Egypt in the reasonably foreseeable future and therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s.36(2)(aa). For the reasons provided for above, the Tribunal does not accept that the applicant was forced to leave Egypt because of his involvement with his local Coptic Orthodox Church and being involved in the reconstruction of his local church’s exterior walls and public bathrooms or that he had a major management role (together with the local priest) of this project which caused him to be targeted by local Islamists, or that he suffered discrimination at his workplace (at a local [organisation]) because of his involvement with his local church or that he was a victim of reprisal attacks because of his association with the local priest and that priest’s involvement with a local girl called [Ms B] and her protection from being forcibly converted to Islam nor are there substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his country of reference, Egypt, there is a real risk that he will suffer significant harm because he chose to be involved in his local church’s community activities or because he has a well-known profile for his involvement and beliefs as Coptic Orthodox Christian.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2021] AATA 4182

31 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction