1835719 (Refugee)

[2021] AATA 3073

1835719 (Refugee) [2021] AATA 3073 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835719

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Kate Millar

DATE:2 July 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 July 2021 at 3:43pm

CATCHWORDS

REFUGEE – Protection visa – Egypt – Coptic Christians living in Egypt – particular social group – a woman who does not wear a headscarf – applicants could obtain protection from the authorities –  inconsistent evidence ––credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIMIA v Haji Ibrahim(2000) 204 CLR 1

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. [Mr A] and Mrs [B] came to Australia from Egypt on a tourist visa on [date] September 2015 to visit their daughter for the birth of their grandchild.  On 29 October 2015 they applied for protection visas on the basis that they feared harm as Coptic Christians living in Egypt.

2. A delegate refused their applications under s 65 of the Migration Act 1958 (the Act).  In refusing the applications, the delegate rejected their claims that their daughter-in-law was forced to convert to Islam, that [Mr A] has an adverse profile with the Muslim Brotherhood and that they were attacked [in] August 2015.  In addition, the delegate found that communal violence has decreased and Copts in urban areas can seek police protection when needed.  The delegate found that there was no real chance or real risk of [Mr A] or Mrs [B] suffering harm if they returned to Egypt. 

   BACKGROUND

3. Both [Mr A] and Mrs [B] were born in Sohag, Egypt.  [Mr A] is from a large family and has two surviving sisters who live in Egypt. 

4. Mrs [B] has [number of siblings].

5. [Mr A] worked in [specified industry].  In the period 1967 to 1976 he worked for the Egyptian Army, achieving the rank of [a rank].  As a result of his service, he received a pension until 2018.  After serving in the Army he worked [for] [a] Defence Force as a civilian between 1978 and 1990.  The family returned to Egypt, establishing itself in Giza, and [Mr A] worked as [an occupation] from 1990 until 2010 when he retired.     

6. They have three children: [Mr C], [Mr D] and [Ms E].  [Ms E] is an Australian citizen who lives in Australia with her husband and two children. [Mr C] and [Mr D] live in Egypt.  In their claim form, [Mr A] and Mrs [B] claim to contact their sons once a week by telephone. 

7. [Mr C] is their oldest son.  He lives in Cairo and since 2018 works as an [occupation] in [workplace].  His wife [is] an [occupation].

8. [Mr D] lives in Giza.  His wife [was] working in a [workplace], but Mrs [B] said she does not know where he lives now as he moves from place to place because of the difficulties [his wife] had at the [workplace].

9. [Mr A] and Mrs [B] first travelled to Australia in 2013 for the birth of [Ms E]’s first child, staying in Australia for approximately two months.  They returned to Egypt and travelled again to Australia on a tourist visa [in] September 2015 and applied for protection visas on 29 October 2015.

   CLAIMS

10. In his application, [Mr A] claimed that [in] August 2015 when walking with his wife they were assaulted by a group of people who asked him to join them for Muslim prayers.  He states he contacted the police, but the authorities are corrupt in Egypt and unable to protect all citizens.  He states the authorities are powerless to stop the attacks on Coptic Christians, and there is nowhere safe for Coptic Christians in Egypt.  He states he is afraid to attend church because he is fearful he will be killed by Muslim extremists. 

11. In her application, Mrs [B] claims that if she returns to Egypt she will be harassed or killed.  She states she will have to live in hiding and practice her religion in secret, and she will have to wear a headscarf to avoid being attacked.  She repeats her husband’s claims of being assaulted [in] August 2015.

12. Both [Mr A] and Mrs [B] claim in their application to fear harm from Muslim extremists and that they will not be free to practice their religion without persecution.  They claim that police and other officials do nothing to protect Coptic Christians.  They claim the police harm Egyptian Christians. 

13. At the interview with the delegate, Mrs [B] claimed their house was raided every time they went outside and things were taken, but the police did not accept their report as they said there were already too many complaints from Christians.  She said they sold their house but did not have sale documents.

14. In a report provided by a psychologist, it is reported that [Mr A] claims his daughter-in-law was marginalised and disenfranchised at work, and the employer expelled her from the profession and consequently from commercial life; she was finally forced to convert to Islam and consequently divorced her Christian husband in 2016.

15. The decision record states that at interview, Mrs [B] said her daughter-in-law was Christian, but not Coptic.  Her daughter-in-law was the only Christian working at a [workplace].  She said people at her workplace tried to get her convert to Islam and sign a document to do so.  She did not sign the document, is unemployed and is trying to minimise her movements. 

16. In a statutory declaration dated 10 January 2021, [Ms E], the daughter of the applicants, claims while her sister-in-law was working at the [workplace] she came across classified information about the government and as a result received threats from management not to share the information.  As she is Coptic, it is stated management were worried she would share the information with the Coptic community.  Shortly after she received a certificate that she had converted to Islam.  She left her job at the [workplace] and engaged a solicitor to declare the certificate void, which occurred but her life remained in danger.  At the time she left her husband (the applicants’ son) for his safety, but they are back together again. 

17. In her statutory declaration dated 20 January 2021, Mrs [B] claims that in July 2015, their house was vandalised by members of the Islamic brotherhood with the word “[word]” written on the outside walls of their house.  She says this word is understood to mean Christian, and to be a threat, and that it means the Muslims will force members of the house to flee their homes.  In or around late August 2015, she declares her husband was forced to sell the house through an agent that worked for the Muslim Brotherhood. 

18. In his statutory declaration of 20 January 2021, [Mr A] says he sold the home through an agent that worked for the Islamic brotherhood who had approached him in the past and advised he should sell the house to them as it could be taken away without any payment.  He said he was fearful he would not get anything for his house in the future so sold in a moment of desperation and fear. 

    [MR A]’S MENTAL STATE

19. In submissions provided after the interview with the Department, [Mr A] claims he was very stressed at the interview, having just learned what had happened with his daughter-in-law and son in Egypt. [Mr A] claims the interview caused flashbacks to his experience in Egypt which led him to being stressed at the interview.

20. He provided an undated report from Mr [F], psychologist, on the letterhead of [a] Medical Clinic and addressed to the Department of Home Affairs. 

21. Under the heading “Diagnosis” Mr [F] states [Mr A] presented symptoms consistent with post-traumatic stress disorder.  Mr [F], despite not having referred to Mrs [B] in the report, or recording whether she had attended any sessions with him, is also recorded as having post-traumatic stress disorder due to her reported history and responses to the clinical interview.  It is stated [Mr A] has a cognitive impairment based on his responses to the mini-mental state examination which “could trouble him remembering, learning new concepts, concentrating, making decisions and providing accurate and new information.”

22. The reports concludes that “on clinical and humanitarian grounds, I support [Mr A] and Mrs [B] appeal to you for this case to be finalised.”

23. Mr [F] states he is seeing [Mr A] under a Mental Health Care Plan but does not state how many sessions he has had with [Mr A].  The report repeats [Mr A]’s claims and the claimed harm to his daughter-in-law and son.  Mr [F] reports [Mr A]’s symptoms were “described with the assistance of his daughter” and it was not apparent if an interpreter was used for this session as “his daughter had to repeat the questions several times”. 

24. The tenor of the report is that this was the first time Mr [F] has seen [Mr A].  It implies, rather than states, that Mr [F] saw Mrs [B] at the same time.  It does not state how many sessions were attended, and it appears that their daughter acted as the interpreter.  The report is not dated, however from the tenor of the submissions accompanying the report, this assessment occurred after the interview with the delegate. 

25. A second report dated 19 January 2021 was provided from Mr [F].  This report is expressed to be in relation to both [Mr A] and Mrs [B], and reports that he has seen them both since June 2018.  It does not state the number of occasions he has seen them.  The report refers to an interview with [Mr A] and Mrs [B] is not mentioned other than in the introductory paragraph.  It is not stated whether an interpreter was used.  The paragraph repeating the claims has been edited a little but is otherwise similar to the previous report. 

26. Mr [F] reports that [Mr A] says he is preoccupied with flashbacks of the attack.  It is stated his presentation of symptoms were consistent with a person with PTSD. 

27. Mr [F] reports that due to his lack of concentration and forgetfulness [Mr A]’s “Mini-mental state” has been regularly monitored and assessed and his cognitive ability has “disorientated to a severe level” and “involves problems with memory, attention, processing visual and spatial information, and complex thinking functions”.

28. [Mr A] and Mrs [B] were advised in the hearing invitation that if they wished to rely on any medical or psychology reports, the Tribunal would like to hear from the author of the report.  At the hearing, only their daughter was presented as a witness. 

29. While the Tribunal did not have the benefit of asking Mr [F] about the content of his reports, the Tribunal accepts that [Mr A] has difficulties with processing information and his memory. 

30. However, in giving evidence to the Tribunal, [Mr A] did not display these difficulties and was able to give clear evidence, including his rank in the Army, the number of years he was in the Army, that he received a defence pension until 2018, the amount of the pension,  his instructions on how this was to be paid to his son, the type of work his son does and how often he attends church.  He provided details of media reports on problems Coptic Christians have had in Alexandria, and said he follows the news and social media.  [Mr A] said he does have some problems with his memory as he is [age] years old, and he is doing follow up with a specialist psychiatrist. 

31. While the Tribunal acknowledges the reports of a cognitive deficit, it is mindful that these conditions can fluctuate, and found [Mr A] was able to recall detailed information consistent with his application including dates, places and events as well as more recent events and media reports from Egypt.

    MRS [B]’ HEALTH

32. Mrs [B] provided to the Department a letter from her general practitioner dated 28 February 2017 stating she suffers severe stress, anxiety and depression, and her general practitioner believes separation from her family is a major contributor to her anxiety and depression.  The Tribunal has taken into account the 2017 report.  No further reports have been provided on her current mental health. 

33. The report from the psychologist Mr [F] (discussed in detail above) while referring to her in the opening paragraph and referring to their claims as a couple does not make any further reference to any assessment or treatment of Mrs [B].  The Tribunal finds this report does not provide information on Mrs [B]’ mental health. 

34. The Tribunal is mindful that there can be memory issues arising from trauma, lapse of time, and cultural and interpreting issues which affect how a person answers questions, as well as an understandable level of stress in attending and giving evidence at a hearing.  It has taken into account the Tribunal’s guidelines on assessing credibility in the conduct of the hearing and the assessment of Mrs [B]’ evidence. 

35. In considering Mrs [B]’s evidence, the Tribunal has done so in light of the statement that in 2017 she suffered severe stress, anxiety and depression and was mindful not to rely on minor inconsistencies or lapses in memory.  On being asked about her health at the hearing, Mrs [B] said she has high blood pressure and a thyroid condition, both of which are controlled by medication. 

    CRITERIA FOR A PROTECTION VISA

36. 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).

37. Under s 36 of the Act, an applicant for the visa must fall within one of the following groups of people:

    ·A person to whom Australia owes protection obligations because he or she is a refugee (“the refugee requirement”); or

    ·A person to whom Australia owes protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a risk he or she will suffer significant harm (“the complementary protection requirement”);

    ·In particular circumstances, the person is a member of the family unit of a person who meets one of the above criteria (“the member of the family unit requirement”)

38. Each of these criteria has further definitions about the elements that must be met.

    The refugee requirement 

39. 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).  

40. 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.

41. 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–5LA, which are extracted in the attachment to this decision.

42. In this case, [Mr A] and Mrs [B] are outside their country of nationality, which is Egypt.  They claim to fear being persecuted because of their religion as they are Coptic Christian.  In addition, as Mrs [B] refers to harm she fears as she does not wear a headscarf, the Tribunal infers she claims she fears harm as a member of a particular social group, being a woman who is a Coptic Christian or as a woman who does not wear a headscarf.  Their particular circumstances are that they are elderly and [Mr A] has a cognitive deficit.  Mrs [B] is reported to suffer depression and anxiety as a result of separation from her family.  They report that before they left Egypt they were fearful of attending church, and instead watched services on television.

    The complementary protection requirement

43. The complementary protection requirement requires that if [Mr A] and Mrs [B] are removed from Australia to Egypt there are substantial grounds for believing there is a real risk that one or both will suffer significant harm.

44. Significant harm is defined in s 36(2A), and a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, the person will be subjected to torture or the person will be subjected to degrading treatment or punishment. 

45. Circumstances in which the person is taken not to face a real risk the person will suffer significant harm are set out in s 36(2B) and are:

    ·Where it would be reasonable for the person to relocate to an area of the country where there would not be a real risk the person would suffer significant harm; or

    ·The person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm; or

    ·the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

    The member of the family unit requirement

46. The person must be a member of the family unit of a person who meets either the refugee requirement or the complementary protection requirement and have applied for a visa of the same class.

    Mandatory considerations

47. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

48. In particular, the “DFAT Country Information Report Egypt (17 June 2019)” (the DFAT report) has been considered.  Other country information was put to [Mr A] and Mrs [B] at the hearing from the United Kingdom (UK) Home Office and the US Department of State.

    CONSIDERATION OF CLAIMS AND EVIDENCE

49. Central to [Mr A] and Mrs [B]’ claims are that they will be harmed as they are Coptic Christians.  They detail two incidents that they say led them to fear that they will be harmed if they return to Egypt.  In one incident they claim they were attacked outside a mosque and suffered injuries as those outside the mosque tried to make them come in for prayers.  In another incident, they claim they were forced to sell their house to the Muslim Brotherhood before they came to Australia.  Mrs [B] states she will need to wear a head covering to avoid abuse in the streets.  They claim they did not feel safe to attend church services before they left Egypt, and also that the police harm Coptic Christians and do nothing to protect Coptic Christians.

50. The test in this case looks to whether there is a well-founded fear of persecution because of their religion or membership of a social group.  A well-founded fear has an objective and a subjective element.  [Mr A] and Mrs [B] claim to hold a subjective fear of harm because of events that occurred to them and what they read in the media now.  Looking at whether this fear is well-founded involves looking to what is likely to occur in the future, and whether there is a real chance of [Mr A] or Mrs [B] being persecuted because of their religion or because they are members of a particular social group.

    Assault [in] August 2015

51. [Mr A] and Mrs [B] claim to have been assaulted [in] August 2015 when going shopping. They were approached by a group of five people who asked them to come to prayer.  When [Mr A] told them he was Christian they assaulted him and Mrs [B], resulting in injuries to them.

52. [Mr A] provided a document “Medical Report & certificate” with a stamp of the [Clinic] signed by Dr [G].  This states [Mr A] attended the emergency unit for medicine and [surgery].  It states he also suffered an acute tear in ligaments of his [body part].  The medical advice was [details deleted].  Two copies of the report were provided, one in English and one in Arabic.

1. Mrs [B] provided a “Medical report & certificate” with the stamp of the [Clinic] also by Dr [G] stating she attended [in August 2015 suffering bleeding from the nose in addition to severe pain in her left knee with painful and limited movement.  She was diagnosed with epistaxis (blood nose) and a sprain in the lateral ligament of her left knee.  The management was [details deleted], medication and bed rest for one month and to visit the clinic every week for follow up.

2. The delegate noted that the signature of the medical report in Arabic did not match the signature of the medical report produced in English, the fonts differ.  The English version does not purport to be a translation, it was issued in English, and the documents are not produced on a letterhead.  The appearance of the document causes considerable concern about whether this document is genuine. 

3. A translation of a handwritten statement to police issued [date] August 2015 at [time] was provided.  This states [Mr A] attended the police station and reported he was walking along [a] Street the previous afternoon when a group of people halted him and asked him to pray.  When he said he was Christian, they attacked him by “assault, insulting, cursing, with no injuries to him” while his wife accompanied him.  He said he had not reported the incident before then as he and his wife were “highly tensioned” after the incident.  The report contains a list of questions and answers.  The following exchange is reported in regard to injuries:

   Q:       What is your injury?

   A:       Attacking me by cursing, insulting, and hitting me and my wife

   Q:       Is there any injuries and want to be referred to the hospital?

   A:       No, they hit me and no injuries

   Q:       Where is your wife?

   A:       She is at home and could not come here as she is tensioned

   Q:       Is there any injuries to your wife?

   A:       No, they hit her with no clear injuries

4. [Mr A] was also asked about the people who attacked him:

   Q:       What are the features of the persons attacked you?

   A:They are five beard persons, putting on long garments, one if them is old man and others are of different ages, they are from the “banned group”.

5. [Mr A] undertook to attend to the prosecution, and the translation records that he signed the document. 

6. The translation records the copy of the report was obtained on [date] August 2015 after paying the required fees.  He said he obtained the report a mere [number] days before they came to Australia.  On being asked why he wanted a copy of the report, he only replied that he “has to apply”.  The Tribunal finds he obtained the reports as he intended to claim protection in Australia and sought the report to support his claims.

7. [Mr A] and Mrs [B] have been consistent in their claims of being assaulted by a group of men outside a mosque, and Mrs [B] showed genuine distress on giving her account of the event, consistent with the event having occurred.  The Tribunal accepts there was an incident where they were pushed or pulled.  It does not accept the reported extent of their injuries given the police report and the concerns about the provenance of the medical reports in English, however they suffered some injury as a result and as a result are subjectively fearful of returning to Egypt. 

8. At the hearing, Mrs [B] claimed the same people would attack them if they returned to Egypt.  The Tribunal does not accept that a period of approximately six years after a chance or opportunistic event that the same people would be seeking either [Mr A] or Mrs [B]. 

   Adverse treatment of Mrs [B] as a woman

9. Mrs [B] claims in her application that if she returned to Egypt, she would have to wear a headscarf to avoid being attacked in person.  At hearing she referred to women having chlorine thrown at them.  On being asked if anything had happened to her, she said once her handbag was snatched. 

10. The Tribunal is not satisfied that an incident of a handbag being snatched shows Mrs [B] would face a real risk of serious or significant harm as a woman who does not wear a headscarf.  Mrs [B] claims that she will be targeted because she is Christian and this is evident because she does not wear a headscarf. 

11. The DFAT report notes that Christians generally dress similarly to Muslims, however Christian women are more likely than Muslim women to leave their hair uncovered.  Christian women in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab.[1]

    [1] DFAT report, At [3.32]

12. Mrs [B] would not return to a rural or conservative area if she returns to Egypt, as when pressed [Mr A] said they would live with their son.  The Tribunal does not accept, given its findings about Coptic Christians in Cairo and Giza, that Mrs [B] will need to cover her hair to avoid being attacked, or even if she did consider it was necessary to cover her hair that this would involve serious or significant harm as defined in the Act.  It does not accept she would have a well-founded fear of persecution as a member of a social group comprised of women who do not wear a headscarf, as distinct from women who are Christian. 

    Sale of the house

13. Mrs [B] and [Mr A] say they sold their house for 40,000EGP before they came to Australia. 

14. In her statutory declaration dated 20 January 2021, Mrs [B] claimed in July 2015 their house was vandalised by members of the Islamic Brotherhood who wrote the word “[word]” on the outside walls.  She states the word is understood to mean Christian in Egypt and the action is understood as a threat in Egypt and to mean that Muslims will force the members of the household to flee their homes. 

15. At hearing, Mrs [B] gave evidence that their house was marked with blue paint with a symbol “N”, and an extremist came to their house and said they were going to get the house.  Mrs [B] said three houses in the street were marked. 

16. On being asked why she had not mentioned previously that someone came to the house, she repeated again that the extremists decided to purchase all the houses that were marked.  On being asked again why she had not mentioned that someone came to the house, she said they sent someone to tell them they had to have the house.  She said [Mr A] spoke to the person. 

17. She said the extremists tried to estimate the price of the house and said they would pay this amount, or they would get it by other means, so she and [Mr A] agreed to sell it for 40,000EGP rather than being attacked.  She said they did not go to the police because the police never side with Christians.  They sold the house five days before they left to come to Australia and were paid cash.  One week after they sold the house people broke into the house and took their mobile phones, and they said at the local mosque that Christian possessions were plunder that could be taken. 

18. Mrs [B] was asked why they reported the assault but not the person coming to their house, she said they did not report because the police are corrupt, and it doesn’t matter what they say the police will write their own point of view.  She said they were paid cash for the house.  On selling the house, the extremists allowed them to stay in the house until they left to come to Australia.  After this, the house was broken into and some mobile phones were taken. 

19. Even taking into account the primary role of [Mr A] in the sale of the house, the Tribunal found Mrs [B]’ oral evidence about the sale of the house vague and evasive. The claim that a person had come to the house was not made before the hearing, or in her statutory declaration provided before the hearing. 

20. In his statutory declaration dated 20 January 2021, [Mr A] repeated the claim about the word “[word]” being written on the outside walls.  He said after the attack outside the mosque he became fearful for his and his wife’s life and decided to sell the house for a trivial amount through an agent who worked for the Islamic Brotherhood who had approached him in the past and advised that he should sell the house as it could one day be taken with no payments.  He states he was fearful he would get nothing for the house and sold it in a moment of desperation and fear.

21. [Mr A] said the house was worth 100,000EGP and they sold it for 47,000EGP because he was under pressure.  He had purchased the land for approximately 15,000–19,000EGP and built the house.

22. The Tribunal does not accept their account of the sale of the house as a result of threats from extremists.  This claim was raised after their application for a protection visa and has developed from having a mark on their house to having a person come to their house and threaten them.  While willing to report the assault, with the encouragement of their son, they did not report the visit to the house or the alleged robbery at the house.

23. The Tribunal does not find it plausible that the Muslim Brotherhood would mark the house and send an extremist to the house because they wanted it, and still be willing to wait for them to depart for Australia before taking possession of the house. 

24. In the interview with the delegate [Mr A] stated he was shopping for [items] for the upcoming sale of their house.  Their daughter claims his answers were misinterpreted.

25. The Tribunal does not accept the account of Mrs [B] and [Mr A] about the sale of the house and finds that there was a planned sale of the house before their departure to Australia. 

    Returnee to Egypt

26. In the course of the hearing, Mrs [B] said she could not return to Egypt as they would be captured by the police and would be under investigation because they have been living in Australia for a long time and would know they have applied for protection.  On being asked how the police would know they applied for protection, she said Egyptian police would find out and they would be tortured or killed.

27. [Mr A] also claimed that if he returns to Egypt he will be captured by police and be under investigation because he has applied for protection. 

28. The DFAT report states that people who return to Egypt after several years’ absence will not face any adverse attention on their return due to their absence, and that failed asylum seekers will not face adverse attention due to their failed application for asylum.[2]  Egyptians who out stay their work or tourist visas in other countries are reported to be regularly returned to Egypt with no attention paid to them by authorities.[3]

    [2] DFAT report, [5.38]

    [3] DFAT report, [5.39]

29. There is nothing to indicate the application for protection would have come to the attention of the Egyptian authorities.  The Tribunal does not accept that [Mr A] or Mrs [B] would face adverse attention if they returned to Egypt due to their absence.

    Adverse treatment of their daughter-in-law

30. At the interview with the delegate Mrs [B] claimed that her daughter-in-law was in hiding after being told to convert to Islam in the [workplace] where she was working, and her son had to flee to [another country] for 14 days.  She said her son moves from place to place. 

31. At the hearing before the Tribunal, she said she could not provide other information on where her son and his wife were, and her daughter could provide the details.  In her statutory declaration, [Ms E] claimed that after seeing a classified government document, there were concerns her sister-in-law would share this with the Coptic community.  A paper was delivered to her stating she had converted to Islam.  She left her job at the [workplace] and engaged a solicitor to declare the document void.  It was declared void, but her life was in danger and she moves between cities for her safety. 

32. There is no suggestion Mrs [B] or [Mr A] would be at real risk of serious or significant harm due to their association with their daughter-in-law.  It is not suggested that their other son [Mr C] has suffered any adverse consequences as a result of any events relating to his sister-in-law.

    Discrimination against their sons

33. Mrs [B] claims her son [Mr C] found it difficult to get a job after his employment ended with a [workplace] associated with the Muslim Brotherhood, and he would be refused work after it was discovered his father is Christian. 

34. DFAT assess that Christians face a moderate risk of discrimination, and the Tribunal accepts [Mr C] may have faced discrimination in getting a job.  However, [Mr C] now has employment.  As [Mr A] and Mrs [B] are retired, and [Mr A] has previously been employed, this does not apply to them.

    Coptic Christians in Egypt

35. [Mr A] and Mrs [B] claim to be Coptic Christian.  They provided a letter of support from the Rev. Fr [name deleted] from [a church].  [Mr A] has a tattoo of the cross on his hand. 

36. The Tribunal accepts [Mr A] and Mrs [B] are Coptic Christians.  In issue are the current circumstances for people who are Coptic Christian in Egypt and whether, if they returned to Egypt, [Mr A] or Mrs [B] owing to a well-founded fear of persecution are able to or unwilling to avail themselves of the protection of the country.

37. To have a well-founded fear of persecution there must be a real chance that the person would be persecuted, in this case because of their religion.  A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, but does not need to reach a particular level, such as a 50% chance.[4]

    [4] Chan v MIEA (1989) 169 CLR 379

38. Persecution for the purposes of the Act means that religion must be the essential and significant reason for the persecution, and in this case, the Tribunal accepts that the claims of [Mr A] and Mrs [B] include that the reason they fear harm is because of their religion. 

39. The persecution must involve serious harm to the person (s 5J(4)(b)), which is further defined as including significant physical harassment or physical ill-treatment of the person, which is what is claimed in this case.  It must involve systematic and discriminatory conduct (s 5J(4)(c)).  ‘Systematic’ conduct was explained in MIMIA v Haji Ibrahim[5] as being the opposite of non-selective, and in this case [Mr A] and Mrs [B] claim they are specifically targeted because of their religion. 

    [5] (2000) 204 CLR 1 at [95]

40. The DFAT report and the reports from the UK Home Office and the US Department of State were put to [Mr A] and Mrs [B] at the hearing, and they were provided the opportunity to make further submissions on these reports after the hearing.

41. According to the DFAT report, Coptic Christians make up between 8 to 10% of the religious population and Sunni Muslims 90%.[6]  Islam is the state religion and the principles of sharia are the primary source of legislation.[7]

    [6] DFAT report, [3.2]

    [7] DFAT report, [3.3]

42. The DFAT report indicates[8] that following a major decline in law and order in the wake of the 2011 Revolution, a June 2012 election resulted in election of Mohammed Morsi, who was from the political wing of the previously outlawed Muslim Brotherhood. Following clashes between Morsi opponents and supporters a military intervention removed Morsi from power and re-installed an interim military regime.  The Muslim Brotherhood were declared a terrorist organisation in 2013.  The DFAT report states that any affiliation with the Muslim Brotherhood, or attempt to express political dissent, is considered evidence of supporting terrorism.[9]

    [8] DFAT report, [2.2]–[2.4]

    [9] DFAT report, [3.52]–[3.55]

43. Egypt adopted a new Constitution in February 2014 and Abdel Fattah el-Sisi (Sisi), a former head of Egyptian Armed Forces, was elected in 2014. He was re-elected in 2018.

44. The Sisi Government’s emphasis on internal security is reported by DFAT to have largely restored general law and order throughout most of the country, with large-scale protests rare and most of Egypt, including Cairo, having low rates of serious or violent crime, excluding crimes against women.[10] 

    [10] DFAT report, [2.39]

45. There have been attacks by militant Islamists in North Sinai in 2017 which, while generally being against government and military targets, have also involved civilians with seven Coptic Christians killed, and the displacement of over 150 Christian families.  An attack by the militants on a Muslim mosque killed 305 people and injured 128 in the same year.  Attacks by militant Islamists have occurred on security forces or representatives of state, but militants have also targeted Coptic Christian churches and pilgrims as well as mosques, tourists and other foreigners.[11]  In response, the Sisi Government established a National Council to Confront Terrorism in July 2017.  It is tasked with formulating a comprehensive national strategy to combat terrorism.[12] 

    [11] DFAT report, [2.40]

    [12] DFAT report, [2.40]

46. In commenting on terrorist attacks against Christians, the DFAT report notes:[13]

    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.

    [13] DFAT report, [3.21]

47. In looking at communal violence,[14] it is reported most Egyptians, especially those in urban areas, live and socialise together with little regard for each other’s religious identity.  However small-scale disputes such as neighbourhood disagreements can on occasions adopt a religious overtone and escalate into community-level violence, particularly in poorer and rural areas.  High-profile incidents in which people are killed or churches attacked are not a frequent occurrence.  The majority of incidences of communal violence are reported to have taken place in Upper Egypt, and particularly in Minya which has a sizable and assertive Christian population, a high concentration of Islamists, and a high rate of poverty and low rate of education.  DFAT cite one high profile incident where in May 2016 an elderly Christian woman was stripped naked and assaulted following rumours her son was in a relationship with a divorced Muslim woman.  Eight men reported to have been involved in the incident were released and ordered to pay a fine. 

    [14] DFAT report, [3.22]–[3.25]

100.   DFAT assess that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations, and occasional incidents of communal violence are likely to occur especially in Upper Egypt and Minya.[15] 

[15] DFAT report, [3.26]

101.   The UK Home Office report cites the Upper Tribunal decision of 2013[16] that Coptic Christians in Egypt are not at general risk of persecution or serious harm or ill-treatment, with the exception of people within particular risk categories or who live in areas outside the large cities where radical Islamists have a stronghold.  The report states “Christians are not generally at risk of persecution or serious harm from the state”.[17]

[16] MS (Coptic Christians: EGYPT) CG [2013] UKUT 611 (IAC)

[17] UK Home office report, [2.4.6]

102.   In regard to non-state actors, the UK Home Office reports that:

During 2016 and early 2017 there was an increase in non-state sectarian violence against Christians.  However, the number of reported attacks by radical Islamists and anti-Christian mobs reduced between 2018 and 2019 and has continued to decline since.  High profile incidents resulting in deaths or churches being attacked are no longer a frequent occurrence, and varies considerably from place to place.[18] 

[18] UK Home office report, [2.4.8]

…

Christians are in general not at risk of persecution or serious harm by non-state actors in urban areas, including in Cairo and Alexandria.  However, Christians in some rural or poorer areas, particularly those with a strong extremist presence, where there have been recent attacks on churches and Christian properties, continue to face discrimination and ill-treatment by non-state actors that may amount to persecution.[19] 

[19] UK Home office report, [2.4.12]

103.   The US Commission on International Religious Freedom (USCIRF) Annual Report 2020 notes that in 2019 religious freedom continued to trend tentatively in a positive direction, with a decrease in radical Islamist violence and anti-Christian mob attacks, and the launch of a government program to address religious intolerance in rural areas.  President el-Sisi and other government officials continued to advocate publicly for religious inclusivity and attended Coptic Orthodox Mass in January, remarking on the need for mutual respect between Muslims and Christians.  There was the launch of a program including door-to-door messaging in Minya Province.  There were convictions as a result of high-profile court cases against perpetrators of religiously motivated violence.  However, religious discrimination is reported to have remained pervasive including a disparity in policies regarding worship, lack of opportunities for non-Muslims to work in government service, state security harassment of former Muslims, and recurring incidents of anti-Christian violence, particularly in rural areas.  A prominent Coptic activist was arrested and has been indefinitely detained, and in Minya a man who was rumoured to have posted comments critical of Islam had his home attacked by a group of Muslims.  Police detained members of the victimised family and stood by as community leaders led a “calming meeting”: which USCIRF took to implicitly absolve the attackers of responsibility as there was a lack of subsequent legal proceedings.  It is recommended that Egypt is placed on the Special Watch List for engaging in or tolerating severe religious freedom violations.[20] 

[20] USCIRF Annual Report 2020, pp 66–67

104.   In submissions provided after the hearing, it was submitted country information shows Copts remain culturally marginalised, discriminated against and persecuted in Egypt by non-state actors.  In the alternative, it is argued there is a real risk the applicants will face significant harm, namely degrading treatment or punishment, or cruel or inhuman treatment or punishment, by a non-state actor and will not have effective protection from the state, in particular when regard is had to their age and health.  The following information was provided in support of this submission:

·1613162 (REFUGEE) [2019] AATA 6852 (6 November 2019).

·Jackson Elliott, ‘Egyptian Christians faring better under Al-Sisi, but remain under threat of attacks and persecution’, The Christian Post (online, 17 January 2021) < Latek, ‘Egypt’s new constitution and religious minorities’ rights: Prospects of improvement?’, European Parliamentary Research Service (23 January 2014).

·1814447 (Refugee) [2020] AATA 909 (16 January 2020).

·1516519 (Refugee) [2018] AATA 633 (27 February 2018).

·‘Coptic Christian attack: Funerals in Egypt for seven murdered pilgrims’, BBC News (online, 3 November 2018) Research Service, Egypt: Background and U.S. Relations (Report, 27 May 2020).

·UK Home Office, Country Policy and Information Note Egypt: Christians (Report, October 2020).

·‘Egypt: New Church Law Discriminates Against Christians’, Human Rights Watch (online, 15 September 2016) < court acquits men accused of abusing Coptic woman’, ABC News (online, 18 December 2020) < attack on Coptic Christians highlights religious violence in Egypt’, Crux (online, 16 October 2020) < must free Coptic Christian rights defender reportedly held on terror charges, say UN experts’, United Nations Human Rights Office of the High Commissioner (online, 11 December 2019) <

·The Tahir Institute for Middle East Policy, TIMEP Brief: Christians in Egypt (Brief, 10 October 2018).

·‘To Protect Religious Freedom in Egypt, Ease Authoritarian Restrictions’, Freedom House (online, 21 November 2019) < Rights Watch, World Report 2020: Egypt Events of 2019 (Report, 2020).

·Orla Guerin, ‘Egyptian Christians living in fear for the future’, BBC News (online, 27 April 2017) < Christian girl kidnapped’, Persecution (online, 7 June 2019) < at Risk Project, ‘Chronology for Copts in Egypt’, (online, 2004) < Press, ‘Muslim mob in Egypt strips 70-year-old Christian woman’, The Guardian (online, 27 May 2016) < of Foreign Affairs and Trade, DFAT Country Information Report Egypt (Report, 17 June 2019).

·US Department of State – Office of International Religious Freedom, 2019 Report on International Religious Freedom (Report, 10 June 2020).

·US Commission on International Religious Freedom, Annual Report 2020 (Report, April 2020).

·‘USCIRF Condemns Egypt’s Arrest of Coptic Activist Ramy Kamel’, US Commission on International Religious Freedom (online, 13 December 2019) <  The Christian Post article states that while life for Egyptian Christians is better under President el-Sisi, believers continue to face persecution and violence from radical Muslims who evade arrest and persecution. It quotes Coptic Christian leader Samuel Tawdros as stating “Not a single person has been convicted or spent time in jail for attacking Christians.” 

106.   This is contrary to the DFAT report which states at [3.23]: “In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years”.  The USCIRF states that in 2019 high profile court cases resulted in the conviction of perpetrators of religiously motivated violence. As a result, the Tribunal places little weight on this report.

107.   Quotes were provided from previous decisions of this Tribunal in the absence of an explanation of the particular circumstances of the applicants.  For example, in 1613162, the applicant was a missionary, and in 1814447 the primary applicant was a single elderly woman who lived in, and would return to, Alexandria.  In 1814447 the Tribunal did not accept that all Coptic Christians are at risk, and the current government is attempting to improve the security situation.  The Tribunal found that Coptic Christians, without more, do not face a real chance or a real risk of facing serious or significant harm in Egypt.[21]  In 1516519, the country information referred to in this decision pre-dates the more recent reports, with the DFAT report in that case being the report as at 2017.  The Tribunal considers these previous decisions show the changes in circumstances in Egypt and that in more recent cases there are additional factors personal to the applicants that resulted in them being at particular risk of harm; such as being a missionary or being a single elderly woman living in Alexandria. 

[21] USCIRF, p 65

108.   Some articles are from a considerable period in the past or have been superseded by more recent reports from the same organisation.[22] The EPRS, while providing useful historical information on the new Constitution in Egypt, approved by referendum in 2014, does not reflect the current situation.

[22] Associated Press, ‘Muslim mob in Egypt strips 70-year-old Christian woman’, The Guardian (online, 27 May 2016) < Orla Guerin, ‘Egyptian Christians living in fear for the future’, BBC News (online, 27 April 2017) < Minorities at Risk Project, ‘Chronology for Copts in Egypt’, (online, 2004) < US Department of State – Office of International Religious Freedom, 2019 Report on International Religious Freedom (Report, 10 June 2020)

109.   Other articles[23] relate to events in Minya and Alexandria, which are acknowledged to be at higher risk from radical Islamists or relate to particular risk groups such as young women.[24]  Many articles refer to events in Minya in 2016, including conflict over the construction of churches and the case of the 70-year-old woman being stripped after rumours of her son’s affairs with a divorced Muslim woman.[25]  These are now a considerable time in the past.  There is support for acts of sectarian violence in the US Department of State report, which states there were incidents of sectarian violence against Christians.[26]

[23] ‘Coptic Christian attack: Funerals in Egypt for seven murdered pilgrims’, BBC News (online, 3 November 2018) < ‘Egyptian Christian girl kidnapped’, Persecution (online, 7 June 2019) < Egypt: New Church Law Discriminates Against Christians’, Human Rights Watch (online, 15 September 2016) < EGYPT-2020-HUMAN-RIGHTS-REPORT.pdf

110.   A more recent article in Crux[27] dated 16 October 2020 reports an attack on Christian homes in Minya.  Crux reports an attack on a child by two young Muslims, with Christian adults retaliating, triggering an attack on homes of Coptic Christians the next day.  It is reported the government seeks to silence by punishing those who speak about the challenges they face, and authorities arrest the victims to compel them to reconcile with their attackers.  This reporting differs from the US Department of State which reports police arrested 12 people from both sides in relation to this dispute.[28]  In regard to the reconciliation sessions, the US Department of State notes:

[27] ‘Latest attack on Coptic Christians highlights religious violence in Egypt’, Crux (online, 16 October 2020) < < the Coptic Orthodox Church does not bar participation in government-sponsored customary reconciliation sessions, according to its spokesman, reconciliation sessions should not be used in lieu of application of the law and should be restricted to “clearing the air and making amends” following sectarian disputes or violence. At least one Coptic Orthodox diocese in Upper Egypt continued to refuse to participate in reconciliation sessions, criticizing such sessions as substitutes for criminal proceedings which would address attacks on Christians and their churches. Other Christian denominations continued to participate in customary reconciliation sessions. Human rights groups and some Christian community representatives characterized the practice as an encroachment on the principles of nondiscrimination and citizenship that regularly pressures Christians to retract their statements and deny facts, leading to the dropping of formal criminal charges.[29]

[29] <  It is stated that the reporting of attacks, rather than the attacks themselves have decreased.  Crux reports that government action against extremists often results in the death of the alleged extremists, who then are not tried.  Those that are tried are often members of the Muslim Brotherhood and are viewed as a political threat by the government.  The article states it is extremists who live normal lives as neighbours, co-workers or local leaders that endanger Christian lives, and this is apparent in mob attacks against Christians.  Local Christians say this is because there are too many people who sympathise with the perpetrators, and authorities do not want to risk confrontation by holding them accountable. 

112.   The Congressional Research Service[30] reports that minority Coptic Christians have faced professional and societal discrimination and occasional sectarian attacks, and records suicide bomber attacks on Coptic churches in 2011, 2016 and 2017.  It also records than in 2020 the Ministry of Interior broke up a terrorist cell planning attacks over Coptic Easter. 

[30] Congressional Research Service, Egypt: Background and U.S. Relations (Report, 27 May 2020)

113.   Information was provided on the arrest and detention of Coptic activist Ramy Kamel,[31] with USCIRF calling for his release.  He has been charged with being a member of a terrorist organisation, spreading false information and disturbing the public order. 

[31] ‘USCIRF Condemns Egypt’s Arrest of Coptic Activist Ramy Kamel’, United States Commission on International Religious Freedom (online, 13 December 2019) <  TIMEP reported in 2018[32] that since President Sisi assumed Office, Christians continued to face sectarian violence.  The government is reported to have increased security measures in churches, however, bombing in 2017 of two churches on Palm Sunday killed 47 people and in the same year a gunman attacked a Coptic Orthodox church and Coptic owned shop near Cairo and killed 11 people before he was arrested, with Islamic State claiming responsibility.  The US Department of State reports that on 24 February 2020, the government executed eight men for their role in the bombings.[33]  It notes public displays of support for Christians from President Sisi and reconstruction of the churches.  A 2019 report from Freedom House addressed the 2011 protests by Christians which was responded to with force, resulting in the death of 20 people.  It states that violence against Coptic Christians and other religious minorities in Egypt has continued unabated, and conditions of marginalisation and discrimination have not been addressed.

[32] The Tahir Institute for Middle East Policy, TIMEP Brief: Christians in Egypt (Brief, 10 October 2018)

[33] <  It has been necessary to review in some detail the information provided due to the complexities of both the history of Coptic Christians in Egypt and the reporting of the circumstances for Coptic Christians in Egypt in the current and reasonably foreseeable future.  Egypt is a country with a poor past record toward Coptic Christians, who were particularly fearful in the period President Morsi was in power due to his association with the Muslim Brotherhood and attacks on Coptic churches.  The Minya Governate and township has remained volatile, and criticisms have been made by organisations such as USCIRF and in articles in Crux about calming meetings or reconciliation sessions.  Upper Sinai remains a risk to both Coptic Christians and Muslims, with extremists reported to have attacked both churches and mosques.  The Tribunal accepts that in the past Coptic Christian churches have been the subject of attacks that resulted in the death of Coptic Christians.

116.   The DFAT, UK Home Office and UNCIRF reports were put to [Mr A] and Mrs [B] at the hearing, and they were provided time after the hearing to consider and respond to these reports with the assistance of their representative.  At hearing, they stated that reports of DFAT, the UK Home Office and originating in the US are a result of what the government tells Westerners, but it is not the experience of people in Egypt.  It is stated that the Arabic News and Christian news, and stories they hear through the church, differ to what is reported. 

117.   DFAT report that under the Sisi administration, the ability of journalists and social media users to exercise freedom of expression has been significantly reduced, and more recently journalists have been charged with national-security related offences.  There has been a media black-out in North Sinai.  DFAT also report that journalists and social media users who report on issues seen as critical of the state or government are highly likely to face significant interference from the state.[34]

[34] DFAT report, [3.69]–[3.74]

118.   The Tribunal accepts that there are real constraints on the media in Egypt, but is not persuaded to infer that the reports of DFAT, the UK Home Office and the US Department of State are based solely on local media or government sources, rather than being drawn from a variety of sources including broader media, including the Christian press and local sources.  It is acknowledged the Christian Press is the outlet reporting attacks on Christians in Egypt. 

119.   The role of the Tribunal in assessing whether a person has a well-founded fear of persecution looks to what would happen if they were to return to the country at this time, and in the reasonably foreseeable future.[35]  The Tribunal is required to respond to changes in the circumstances of a country, both for better and for worse.

[35] MZYXR v MIAC [2013] FCA 252

120.   In terms of the reasonably foreseeable future, the Sisi government has shown a commitment to ending violence against Christians and taken action to prevent terrorist attacks and against perpetrators of attacks which have reduced significantly in this time.  The attacks that do occur are in Upper Egypt and the Sinai Peninsula, with Minya in Upper Egypt continuing to be subject to episodes of communal violence sparked by religion. 

121.   President Sisi won the last election and will remain in power for at least the next two years, and in the reasonably foreseeable future will continue to provide support for the Coptic community and increase security.  This is a significant change to the time [Mr A] and Mrs [B] left Egypt when President Morsi was in power

122.   Common to the DFAT Report and the UK Home Office is that Coptic Christians are not at risk from the State, although they may face some societal discrimination.  Contrary to many of the reports provided by the applicants, more recent information shows perpetrators of religious motivated violence are being prosecuted and sentenced, although the degree to which reconciliation sessions are being used to avoid prosecution in rural areas in uncertain.

123.   In regard to the risk from non-state actors, incidents of violence against Coptic Christians are reported in particular areas, such as Minya, Alexandria and the Sinai Peninsula.  While there may be some risk that rises above a remote risk in these locations the Tribunal is not satisfied on the information before it that this extends to other parts of the country, in particular to Cairo and Giza.  Tribunal finds that the risk from non-state actors at this time and in the reasonably foreseeable future in Cairo and its surrounds is remote.

124.   As the risk to a person in Egypt will depend on the particular circumstances of the person, it is then necessary to look at the individual circumstances of [Mr A] and Mrs [B] in their totality.  [Mr A] and Mrs [B] are [age] and [age] years of age respectively.  [Mr A] has a cognitive impairment.  He worked in the Egyptian Army, and before he retired in 2010 was a manager at a [workplace].  He received a pension until 2018. They have not been in Egypt since 2015.

125.   [Mr A] and Mrs [B] have family support in Giza, with both sons living in Giza.  Mrs [B] declined to state where they would live if they returned to Egypt, stating there is nowhere they could live and because she is Christian she could be threatened at any time.  While they state they cannot live with [Mr D] due to his circumstances, [Mr C] is employed and living with his wife.  They also have other family members in Egypt, with Mrs [B] having a sister in Cairo. 

126.   [Mr A] and Mrs [B] are not activists.  They are not involved in church building or in converting others to Christianity. Mrs [B] is not young or single.  If they are returned, they will not face discrimination in applications for government jobs as they are retired.  [Mr A] received a pension while he was in Egypt as a result of having served in the Egyptian Army, although none of the people who attended the hearing were able to state if his pension payments would resume if he returned to Egypt.

127.   The applicants claim to fear harm from non-state actors, in this case specifically the Muslim Brotherhood.  At the time they left Egypt the risk of harm from non-state actors was higher than it is currently.  There is readiness, reportedly with political overtones, to take firm action against members of the Muslim Brotherhood. 

128.   Mrs [B] acknowledges that since President el-Sisi has been in power, he is trying to fix the problems, but says the Muslim Brotherhood are spread all over the country and are everywhere. They did not attend church often due to fears about the Muslim Brotherhood while President Morsi was in power.  The Muslim Brotherhood have since been targeted by the Sisi Government, who declared the Muslim Brotherhood a terrorist organisation in 2013.

129.   The conditions for Coptic Christians are reported to have improved under the Sisi Government, and DFAT states they generally live and socialise with each other with little regard to each other’s religious identity.  The risk to Christians increases if the person lives in a rural area in Upper Egypt, particularly Minya, or in the Sinai Peninsula, or is an activist, or is single or a young woman.  These circumstances do not apply to [Mr A] or Mrs [B]. 

130.   The applicants are elderly and [Mr A] has a cognitive impairment, however they have family support available to them in Giza and in Cairo.  In regard to any health needs they have, the Tribunal notes that DFAT reports the government is in the process of introducing universal health care.  However it also notes that:

Many Egyptians lack access to affordable public health care, particularly in rural areas, and the standard of public hospitals is very low. Quality in the private sector is better, but limited to those few who can afford it.[36]

[36] DFAT report, [2.13]

131.   [Mr A] and Mrs [B] have been able to access health care when in Egypt as shown by their evidence of events after the assault.  They will have the support of their sons on retuning to Egypt.  There is no indication that [Mr A] or Mr [B] would be at increased risk of serious or significant harm because Mrs [B] suffers severe stress, depression and anxiety, high blood pressure or a thyroid condition, or because of [Mr A]’s cognitive impairment, or that they will be unable to access services for their physical or mental health.  

132.   The Tribunal finds the risk of serious harm to [Mr A] and Mrs [B] is remote, and they do not have a well-founded fear of persecution in the circumstances of their particular case because of their religion.

State protection

133.   A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a country.

134.   Section 5LA of the Act sets out when effective protection measures are available to a person.  Effective protection measures are available to a person if protection against persecution could be provided to the person by (among other things) the relevant State, and it is willing and able to offer such protection (ss 5LA(1)(a) and (b)).

135.   A State is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable and (where the protection is provided by the relevant State) the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

136.   [Mr A] refers to the police not responding to the assault on him and his wife, and both he and Mrs [B] state the police do not take complaints made by Christians seriously.  Specifically, on being asked about the police statement that records that they did not suffer any injuries, Mrs [B] said the police in Egypt will write whatever they feel like when it affects Christians, and that someone could be killed and the police will call it an altercation and change the details in the report.  She said [Mr C] insisted they reported this to police.

137.   Mrs [B] said the government bodies are corrupt, and this is shown by the acquittal of the attackers of a Coptic Christian woman in Minya.  Some articles have been located which referred to a Muslim mob stripping a 70-year-old woman in Minya in 2016.  Six men were arrested.  A Christian cleric in Minya reported that police failed to take action after he had notified them of threats against them by Muslim villagers.  A court is reported in 2020 to have acquitted the attackers.  It is reported that Egypt’s chief prosecutor was looking into a possible appeal.[37]

[37] Egyptian court acquits men accused of abusing Coptic woman - ABC News (go.com)

138.   It is not suggested that Egypt does not have an appropriate criminal law.  DFAT reports that professionalism varies across the police, with the effectiveness of police limited by a shortage of equipment, a lack of training and low pay and poor investigative skills, particularly in relation to sexual assault.[38]  It is reported that the authorities are committed to preventing communal violence, but this commitment may vary between individuals and locations.[39]  The police are not held in as high esteem as the military, and their ability to deal with evidence is widely mistrusted.[40]

[38] DFAT report, [5.7]

[39] DFAT report, [3.23]

[40] DFAT report, [5.8]

139.   The Egyptian Constitution guarantees the independence of the judiciary, prohibits interference in judicial affairs and guarantees the permanence and independence of the judiciary.[41]  DFAT also report that Christians, particularly in rural areas, may face difficulty in obtaining justice though legal means.[42]  It is reported that senior judges are generally seen as professional and independent, but the quality and impartiality of judges at junior levels varies, and individual judges can be subjected to community pressure to rule in accordance with dominant social and political norms, particularly in cases in which religion is a factor.[43]

[41] DFAT report, [5.10]

[42] DFAT report, [3.36]

[43] DFAT report, [5.11]

140.   The US Department of State reports several senior judges are Christian.[44]

[44] EGYPT-2020-HUMAN-RIGHTS-REPORT.pdf

141.   The DFAT report notes[45] that despite numerous attempts to wind back their power, Egyptian judges have been largely successful in retaining and asserting their autonomy.  More recently concern has been expressed about amendments by the Sisi Government allowing it to appoint members of the judiciary, and human rights observers have expressed concern about political interference in more junior judicial appointments. 

[45] DFAT report, [5.10]–[5.21]

142.   There are concerns, also noted above, about reconciliation committees which are particularly common in rural areas and it is noted that Christian authorities are opposed to reconciliation committees.

143.   The USCIRF reports in 2019 several high profile court cases which resulted in the conviction of perpetrators of religiously motivated violence, including a conviction in April 2019 of a police officer for killing two Coptic Christians in front of a church in Minya.[46]  That report also states security forces have struggled to end ISIS activity in North Sinai.  It is reported that after rumours circulated of a Christian man having posted comments critical of Islam on Facebook, his home was attacked.  Police are reported to have detained the members of the victimised family and arrested the person and stood by as community leaders ran a “calming meeting” which is reported to have implicitly absolved the attackers of responsibility.[47]

[46] USCIRF, p 66

[47] USCIRF, p 67

144.   [Mr A] and Mrs [B] can access State protection as shown by the report to the police of the assault.  They claim that the police were not willing and able to offer protection, as they took no action and they refused to take action as “Christians already have too many claims”.  [Mr A] and Mrs [B] left Egypt shortly after this occurred despite having undertaken to attend to the prosecution, this has not been tested by these events. 

145.   On the basis of the DFAT report, the Tribunal finds that Egypt is able to offer protection to [Mr A] and Mrs [B] as they can access the protection, the protection is durable and consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. 

146.   It follows that the Tribunal also finds that [Mr A] and Mrs [B] do not face a real risk of serious or significant harm from police or other authorities because they are Christian as claimed in their application. 

Complementary protection

147.   It was submitted after the hearing that there is a real risk [Mr A] and Mrs [B] will face significant harm, namely degrading treatment or punishment, or cruel or inhuman treatment or punishment by a non-state actor and will not have effective protection from the state, in particular when regard is had to their age and health.

1. ‘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.

149.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

150.   For the reasons given above the Tribunal does not consider [Mr A] or Mrs [B] have a well-founded fear of persecution.  This is because there is not a real chance, even given their age and state of health, of serious harm if they return to Cairo or Giza and because they could obtain protection from the authorities. They have the support of their sons and will return to Giza or Cairo. 

151.   As a result, the Tribunal also does not consider there is real risk of significant harm if they return to Egypt. 

152.   Therefore, the Tribunal is not satisfied they meet the complementary protection requirement. 

CONCLUSION

1. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

   REQUEST FOR REFERRAL TO THE MINISTER

154.   The applicants have requested that the Tribunal refer their case to the Department for consideration by the Minister under s 417 of the Act which gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

155.   This request was made on the basis of the age of the applicants and their state of health, including their psychological health. 

156.   The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The applicants can still make a request directly to the Minister.

DECISION

157.   The Tribunal affirms the decision not to grant the applicants protection visas.

Kate Millar
Senior 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.

…