1836493 (Refugee)

[2022] AATA 2763

1836493 (Refugee) [2022] AATA 2763 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul O'Connor (MARN: 0854511)

CASE NUMBER:  1836493

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Bridget Cullen

DATE:29 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2022 at 11.13am

CATCHWORDS

REFUGEE – protection visa – Egypt – religion and ethnicity – Christian with non-Egyptian heritage – harassment, threats and bomb attack on church – fear of harm from Muslim extremists and police inaction – undetailed claims and evidence – visa and travel history – no fear of harm expressed in previous visa applications – application for protection made shortly before visitor visa ceased – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), (2A), 65, 424AA

Migration Regulations 1994 (Cth), Schedule 2

CASE

MIAC v SZQRB (2013) 210 FCR 505

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Egypt, applied for the visa on 9 May 2017. The delegate refused to grant the visa on the basis that the applicant was not a refugee as defined in s 5H of the Act, and that Australia did not have complementary protection obligations to the applicant.

3. The applicant firstly appeared before the Tribunal on 9 February 2022 for a Directions Hearing. The applicant’s former representative had been suspended from practice as a Registered Migration Agent. That the previous representative was suspended does not in any way reflect on the applicant or the merits of the review. The Tribunal held the Directions Hearing for purposes of obtaining the applicant’s most recent contact details to ensure that the Tribunal was able to communicate with him effectively as a matter of procedural fairness.

4. The applicant again appeared before the Tribunal on 10 June 2022 to give evidence and present arguments in a substantive hearing of the application. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant provided the Tribunal with a 94-paragraph Statutory Declaration, in English, declared before his representative on 6 June 2022. The Statutory Declaration has not been translated. The representative told the Tribunal that the document was prepared by the applicant, such that the Tribunal should consider it to be the applicant’s evidence.

6. The Statutory Declaration indicates that the applicant does have a reasonable command of English that would have facilitated his understanding of the proceedings.

7. An applicant before the Tribunal is entitled to full interpretation, if they wish, as a hearing can be stressful in a second language. The Tribunal was careful to ensure that the applicant understood all the interpretation, and also to ensure that the Tribunal understood the evidence given to it by the applicant. The applicant confirmed that he understood all the interpretation, and did not have any concerns about the interpretation, at the conclusion of the hearing.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing and made submissions on the applicant’s behalf.

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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

15. The issue in this case is whether the applicant is a refugee as defined under s 5H of the Act, or if they are someone that Australia has protection obligations towards per s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. The Tribunal, in reaching its decision, has the following evidence before it:

    ·Tribunal case 1600595 – as the Tribunal obtained the decision record from this case file using its inquisitorial powers, it then put the information to the applicant at hearing in accordance with the procedure set out in s.424AA of the Act (discussed in some detail below);

    ·Department File [Number], which contained all information before the Department Delegate at the time of the decision to refuse the protection visa application;

    ·The Department decision record, provided to the Tribunal by the applicant on lodging the application for review;

    ·Request for hearing to be held in person, and postponement request lodged by the applicant’s representative, both refused by the Tribunal;

    ·Representative submissions and 13 attachments sent to the Tribunal on 5 June 2022;

    ·Applicant’s Statutory Declaration sent to the Tribunal on 8 June 2022.

17. The applicant lodged the protection visa application on 9 May 2017. The applicant, in applying for the protection visa, made the following claims, as summarised by the Tribunal:

    ·The applicant claims he is a Christian Catholic with [Country 1] and [Country 2] heritage, who was harassed by Muslims;

    ·Clashes between Coptic Christians and Muslims occurred on different occasions, leading to a tense situation in Alexandria, where the applicant came from;

    ·The applicant was sponsored by his parents to come to Australia, and arrived on either [Date 1] or [Date 2] April 2017;

    ·On 9 April 2017, the Pope was to visit the applicant’s church, so he helped with preparations for the visit;

    oOn the day of the Pope’s visit, the applicant’s friend (“[Mr A]”) and him had been taking photos of the Pope and surroundings. They noticed a group of men in the street that they had not seen before, who “were acting differently to others”. As “[Mr A] knew most of the people who are Christians” they thought this strange.

    oBecause of this, [Mr A] went back inside to check the photos, and found photos with the group of men. On the basis of viewing these photos, the applicant and [Mr A] formed the view that this group of men was not, as they had earlier thought, part of the secret service or police. They became suspicious;

    oThe applicant and his friend decided to head back to the church to check that things were okay. Coming out of [Mr A]’s house, they were stopped by a person who pushed them back into the house, who threatened and swore at them, as they were Christians. The man grabbed [Mr A]’s camera and took it, telling them, “we will be back for you and we will kill you”;

    oNext, an attack (by way of explosion) occurred outside the church, with screams and people crying;

    oThe next evening, the applicant’s friend [Mr A] was threatened by a caller from an unknown number not to speak about what was seen, or consequences would be severe for both of them (death);

    oThe applicant continued with his trip to visit his family in Australia, as he was scheduled to depart Egypt the next day, saying that all he could now do was to pray for his friend [Mr A];

    oSome 10 days after the incident, the applicant’s friend called the applicant and said that he did not know whether to report what they saw to the authorities;

    oThat same day, the applicant’s fiancée’s father called the applicant, breaking off their engagement as he had found out that the applicant’s friend [Mr A] was planning on reporting the matter, and he was concerned for his daughter’s wellbeing as the applicant left her behind in Egypt.

    ·The applicant fears the Muslim extremists, who would make trouble for him, and that the police would not do anything as they may be supporters of Muslim extremists.

18. The delegate found that the applicant was of mixed [Country 1]-[Country 2] heritage and [Catholic] Christian as claimed, but that the applicant had not experienced or been targeted for harm in anyway because of his ethnicity or religion.

19. The delegate accepted that the applicant possibly had a Coptic Christian friend named [Mr A] that the applicant attended school with, but without substantive evidence, the delegate was not satisfied that the applicant or his friend [Mr A] were present near the church when the bomb attack happened, or were accosted by the unknown person, or were threatened over the phone.

20. The Delegate also did not accept that the applicant’s engagement was called off for the reasons stated by him.

    Relevant Country Information

21. In addition to considering the country information provided to the Tribunal by the applicant, the Tribunal has considered the most recent DFAT Country Report available to it, dated 17 June 2019. Relevantly, that report provides:

    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.

    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 (see Judiciary). 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.

    Tribunal Hearing

22. At the hearing of this matter, the Tribunal gave the applicant an opportunity to explain the nature of his claims, concerns in relation to returning to Egypt, and his personal story. The Tribunal accepts that the applicant is a citizen of Egypt, and that Egypt is his receiving country. Further, the Tribunal accepts that the applicant is a Coptic Christian of mixed [Country 1]-[Country 2] heritage.

23. The Tribunal also accepts that there was a bombing in Alexandria on Palm Sunday in April of 2017, which resulted in loss of life. The delegate’s decision record reflects that country information indicates that an Egyptian military court “had sentenced 17 people to death for their involvement while 19 were handed life prison terms for the church bombing attacks”.

24. Although the Tribunal accepts the historical fact of the bombing referenced by the applicant in his claims for protection, other than the applicant’s own assertions, there is no evidence corroborating his claims to have been near the bombing or involved in an altercation over photos on [Mr A]’s camera. There are no police reports. There are no photos. There are no witnesses.

25. The Tribunal asked the applicant why, given that it had now been 5-years since the bombing, he feared retribution if he returned. His answers lacked any meaningful detail and consisted of a broad claim that he would be found by those responsible, and that “muslim terrorists have ways and means to keep a check on people they want to find” (errors in original).

26. The applicant claims that he has been unable to contact [Mr A] since a few weeks after the bombings and does not know if he is alive. The Tribunal thinks it implausible, given the close relationship he claimed to have had with [Mr A], that even if [Mr A] had been harmed, that someone in [Mr A]’s family would not have reached out to the applicant or his family to advise them of the tragedy (in his statement, the applicant says that, “I have had strong friendship with a Christian person from Coptic Orthodox background and his name is [Mr A] as his father both have been working together and as my father before his departure to Australia asked his father to look after me.”

1. The travel history of the applicant, and his family’s geographical location more broadly, paint a picture that is not consistent with the applicant needing protection. The delegate set out the relevant dates and circumstances in the delegate’s decision record (provided by the applicant to the Tribunal in conjunction with the review), which the applicant confirmed at the hearing.

2. Relevant migration history:

Date

Events

16 Sep 2004

Applicant’s father lodges a Class AX subclass 103 Parent visa application, which included the applicant and his mother as dependants.

The applicant’s sister was the sponsor. The applicant’s sister first travelled to Australia in 2000 and obtained permanent residency on the basis of marriage to an Australian.

27 Feb 2006

Applicant withdraws from subclass 103 visa application. The applicant was [Age]-years old at this time, having been born in [Month, year].

22 Dec 2008

Applicant lodges application for a Class TR subclass 676 Tourist visa.

05 Jan 2009

Applicant refused subclass 676 visa as applicant was not deemed to be a bona fide tourist.

[Dec] 2013

Applicant’s parents leave Egypt to migrate to Australia permanently.

26 Oct 2015

Applicant lodges Class FA subclass 600 Visitor (Sponsored Family) visa application with his father as the sponsor.

09 Dec 2015

Applicant refused subclass 600 visa.

19 Jan 2016

Applicant seeks Tribunal review of subclass 600 visa refusal decision.

7 September 2016

Tribunal Hearing in visitor visa review (Matter 1600595).

20 Dec 2016

Tribunal remits subclass 600 visa refusal decision.

19 Jan 2017

Applicant granted subclass 600 visa.

09 Apr 2017

Explosion at the “Mar Markas” Church.

[Apr] 2017

Applicant arrives in Australia as the holder of a Class FA subclass 600 Visitor visa.

09 May 2017

Applicant lodges Class XA subclass 866 Protection visa application (currently under review).

12 May 2017

Applicant’s subclass 600 visa ceases.

1. The applicant’s parents, only sibling (his sister), sister’s husband, brother-in-law, and sister’s children all reside permanently in Australia. Additionally, the applicant’s paternal uncle, his wife, and 2 sons, all reside in Australia.

2. Despite claiming to have experienced a distressing, life threatening event just prior to his arrival in Australia on an already organised visitor visa, the applicant waited a month to apply for protection. The applicant applied for protection just a few days prior to his visitor visa ceasing. Although a month is not a long period of time, the Tribunal considers that, were the applicant’s claims genuine, he would have consulted the Department immediately or shortly after his arrival.

3. The Tribunal does not accept that the applicant’s relationship with his fiancée ended for the reason claimed – that her family feared for her life because of the events with [Mr A]. The Tribunal cannot speculate as to why the relationship may have ended, but as the Tribunal does not accept that the applicant was targeted in any way with the church bombings as claimed, it follows that the Tribunal also does not accept that this had a flow-on impact on his personal relationship with his claimed fiancé, [Ms B].

   Applicant’s migration history

4. The Tribunal observes that the applicant was granted the Subclass 600 visa that allowed him to travel to Australia following merits review by the Tribunal (differently constituted). The Tribunal obtained a copy of the Tribunal’s Decision Record in the Subclass 600 (Visitor) (Class FA) matter, dated 18 December 2016. As the information contained in the Decision Record, subject to any response by the applicant, could have been the reason, or a part of the reason, that the Tribunal affirmed the decision under review, the Tribunal put the relevant information in the Decision Record to the applicant, in accordance with s.424AA of the Act.

5. As the Tribunal hearing was conducted via Microsoft Teams video (for the reason that the applicant and Tribunal were located in different states), the Tribunal briefly adjourned the hearing to provide the applicant and his representative with an electronic copy of the Decision Record in Matter 1600595. The representative acknowledged that he had a copy of the Decision Record, and had reviewed it, at the time that the hearing reconvened.

6. The Decision Record reflects the information provided by the applicant, his father, and his mother, to the Tribunal at the time of the hearing of the Visitor Visa review on 7 September 2016. That information paints a very different picture of the applicant’s claimed fears of religious persecution, and includes the following passages:

7. Evidence given in the visitor visa review by the applicant’s father:

   His son is not politically active, he has never been persecuted in Egypt because of his religious faith and he has never had any problems whatsoever with the Egyptian authorities.

8. Evidence given in the visitor visa review by the applicant’s mother:

   The review applicant's wife (the visa applicant's mother) told the Tribunal that she wants her son to come and stay with them for a little while and then go home. He is an adult and he is not going to start again from zero in Australia. He is happy in Egypt.

9. Evidence given in the visitor visa review by the applicant himself:

   He is not politically active and he has never been persecuted in Egypt because of his religion. He has never had any troubles or problems with the Egyptian authorities.

   And:

   The Tribunal then discussed with the review applicant relevant country information regarding various problems in Egypt, as follows:

   DFAT advises Australians to reconsider travelling to Egypt because of the ongoing political tension and the threat of terrorist attack. The advice notes that terrorist attacks could occur anywhere, at any time, in Egypt;World Bank data indicates that the GDP per capita in Australia is over 20 times that in Egypt; and

   The DFAT report for Egypt indicates that [Catholic] Christians are a religious minority in Egypt and, as such, are subject to some official and societal discrimination and they may face violence.

   Invited to comment, the review applicant claimed that:

   There is a big population difference between Australia and Egypt – 92 million in Egypt compared to 25 million in Australia, and that's what makes the difference. Also, political attacks happen in areas where uneducated people live – it's generally far away from Alexandria. A lot of people from Australia visit Egypt;

   In 2011 the Muslim Brotherhood badly affected the Egyptian economy but now Sisi is trying to adjust the economy again;

   Individual events happen to Catholics in areas where there's not much education. Nothing is happening to Catholics in Alexandria or Cairo.

   They talk to their son once per week and if they ever hear about something, they ask him about it but he says it's nothing.

   Finally, the Tribunal put to the review applicant statistical information about the high 'non-return rate' of Egyptian passport holders, which increased rapidly from 6.37% for the 2010/11 financial year to 15.20% for the 2012/13 financial year.

   In response, the review applicant claimed that there were lots of political problems in Egypt in 2011 and 2012. Because of the Muslim Brotherhood, many Christians overstayed their visas and then applied for protection as refugees. For example, in 2011 120,000 Christians left Egypt. However, they didn't all come to Australia.

10. The applicant told the Tribunal that he, his mother, and father, were truthful in their evidence before the Tribunal in 2016. He points out that the central event he now expresses concern about, the 9 April 2017 church bombing/explosion, transpired after the hearing had been held in the visitor visa review. It was at this time, after the bombing, that he realised he was in danger.

11. The Tribunal pointed out that if the applicant was being truthful in the visitor visa review, as he clearly stated that he did not experience any religious or political discrimination of any form, that the impact of that was to put a time stamp on the applicant’s claims for protection now before this Tribunal. In other words, the applicant’s claims for protection could only have arisen after 7 September 2016. The applicant told the Tribunal that he agreed that this was correct, as he was honest before the visitor visa Tribunal.

12. The Tribunal observes that the applicant’s parents and sister did not give evidence at the hearing of the protection visa matter that is the subject of this review.

13. The Tribunal does not accept the applicant’s evidence that he now requires protection. The Tribunal observes that there is little evidence or detail provided by the applicant in relation to his claims at all, or those claims that postdate 7 September 2016. In the context of his having vociferously asserted that he did not require any protection just a few months before making his claim, the Tribunal considers his overall story to be implausible. The Tribunal does not accept that the applicant, or his friend [Mr A], were in any way targeted or involved in the April 2017 church bombing as claimed.

14. The Tribunal does not accept the applicant’s vague details that an unidentified group of men would even be able to identify him, were he to return to Egypt.

15. The applicant’s other personal circumstances do not reflect a man suffering persecution, or being in any danger, in his home country. The Decision record for the Visitor Visa application for review reflects that the applicant’s father told the Tribunal (differently constituted) that his son worked for the “[Company] and earns 4,000 to 5,000 Egyptian pounds per month, which is a lot of money in Egypt. This enables him to live like a king. If he came here permanently, it would be very difficult for him to start again.” In that hearing, the applicant told the Tribunal that he had, “50,000 (Egyptian) pounds in savings. He lives in a flat he owns and he has another flat that he rents out at about 3,000 pounds per month.”

16. The delegate’s Decision Record in this protection visa matter reflects, and the applicant confirmed at hearing, that he had worked in his role at [Company] since 2011, and his employers were Muslims. The applicant confirmed that he was the only Christian working at his workplace. He was let go after he failed to return to Egypt. The Tribunal finds that the applicant has been able to participate fully in Egyptian life, including employment.

17. The Tribunal accepts, based upon the country information provided to it by the applicant, in conjunction with the DFAT report, that there have been attacks on the Coptic Christian community in Alexandria and elsewhere in Egypt. However, the Tribunal does not accept that the applicant has been individually targeted.

18. While the Tribunal also acknowledges that such attacks Christians could happen again in future, the country information indicates that there is a reasonably functional police service and judicial system in Egypt, and that the perpetrators of the 9 April 2017 church explosion/bombing have been prosecuted. On this basis, the Tribunal finds that the receiving state (Egypt), or a party or organisation that controls the State or a relevant part of the State or a substantial part of the territory of the relevant State, could provide protection against persecution to the applicant.

19. The Tribunal finds that there are effective protection measures available, that the receiving State (Egypt) is willing to provide and able to provide to the applicant.

    Cumulative claims

20. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of being a Coptic Christian, [Catholic], nor on the basis of his mixed [Country 1] and [Country 2] heritage, or on the basis of any other reason if he returns to Egypt now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Egypt.

21. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

22. The Tribunal has also considered the applicant's claims under complementary protection.

23. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on the grounds of being a Coptic Christian, [Catholic], nor on the basis of his mixed [Country 1] and [Country 2] heritage, or based on any other reason, now or in the reasonably foreseeable future, if he returns to Egypt.

24. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Egypt now or in the reasonably foreseeable future.

25. Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.

26. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

27. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act, and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

28. Considering the applicant's individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt that there is a real risk that he will suffer significant harm.

    Overall conclusion

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

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

31. 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

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

    Bridget Cullen
    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.

    …