1837228 (Refugee)

[2022] AATA 4970

1837228 (Refugee) [2022] AATA 4970 (23 November 2022)

Corrigendum

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Botros (MARN: 1799679)

CASE NUMBER:  1837228

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Peter Vlahos

DATE OF DECISION:  23 November 2022

DATE CORRIGENDUM

SIGNED:12 December 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·The text at paragraph [98] is to be deleted, and replaced with the following text:

For the reasons given above the Tribunal is satisfied that each of the applicants are not persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a).

Peter Vlahos
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Botros (MARN: 1799679)

CASE NUMBER:  1837228

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Peter Vlahos

DATE:23 November 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 23^rd November 2022 at 5.12PM.

CATCHWORDS

REFUGEE – protection visa – Egypt – fear of harm from individual for assisting in his arrest after extremist attack on church – threats to applicant and family – individual has escaped from prison and travelled to third country to seek applicant for revenge – religion – Coptic Orthodox – credibility – vague claims and evidence – delays in departing home country after attack and third country after individual’s claimed arrival there – late claim that individual associated with extremist group – country information – member of family unit – essential employee in critical work sector – Ministerial intervention requested – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 417

Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES

Ejueyitsi v MIMA (2006) 151 FCR 289

Guo v MIEA (1996) 64 FCR 151

Huang v MIMA [2001] FCA 901

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Mohamed v MIMA (1998) 83 FCR 234

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 17 December 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first-named applicant who claims to be a citizen of Egypt and the second-named applicant who claims to be a citizen of [Country 1] applied for the visas on 11 January 2018. The delegate refused to grant the visas on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. The first-named applicant appeared before the Tribunal on 27 October 2022 to give evidence and present arguments. The Tribunal enquired about further evidence being presented by others to the Tribunal (including the second-named applicant), but it was told by the applicant and his legal counsel that the second-named applicant did not wish to present any evidence in addition to the first-named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing together with his solicitor assistant.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of origins and nationality as claimed

12. Based on copies of the first-named applicant’s passport[1] which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts and finds that the first-named applicant is a national of the Arab Republic of Egypt and has assessed his claims against that country in relation to section 36(2)(a) and (aa) of the Act.

    [1] Egyptian passport [number] – TRIM record [Reference 1] 

13. In relation to the second-named applicant based on copies of her passport[2] which was provided to the Department and on file with the Tribunal, and in the absence of any evidence to the contrary, the Tribunal accepts and finds that the applicant is a national of [Country 1].

    [2] [Country 1] Passport [no.]- TRIM record, [Reference 2]

14. On the basis of the above reasons and conclusions, the Tribunal accepts the applicants’ identity and countries of origin as claimed.

15. The second-named applicant has made no specific and separate protection claims for the Tribunal to consider except for those which have been submitted by the first-named applicant. In doing so, the second-named applicant is considered on the evidence before the Tribunal a member of the same family unit of the first-named applicant as defined by reg. 1.12 of the Migration Regulations 1994 and therefore also a member of the same family unit as defined in s. 5(1) of the Act and will so be assessed by the Tribunal when determining matters in relation to section 36(2)(a) and (aa) of the Act.

    Third country protection

16. The Tribunal noted that the applicant has lived in [Country 2] since [year] but his [Country 2] visa in his Egyptian passport has expired and there is no evidence before the Tribunal to indicate that he still has a right to enter and reside in [Country 2]. The applicant also made it known to the Tribunal that once he has left [Country 2] for a period of five or six months, his visa would cease automatically. The Tribunal noted that the applicant has not left Australia since he submitted his protection visa application and it is proper to concede that any right to return to [Country 2] he may have had, has expired. Therefore, based on the evidence before the Tribunal, the Tribunal finds that the applicant (and his partner) have no right to enter and reside in any safe country for the purposes of s. 36(3) of the Act.

    The Applicants’ migration history

17. The applicants’ migration history is recorded in the Department’s decision record as follows: [information deleted]

    The Applicants’ claims for Protection (the first-named applicant)

18. The first-named applicant’s claims for protection, including those raised at interview, and evidence provided by the applicant in support of their claims are contained in [Department reference]. The applicant’s claims for protection are summarised below:[3]

    [3] Protection visa application: [Document 1] – TRIM record [Reference 3] refers 

    ·The applicant is seeking protection in Australia, so he does not have to return to Egypt.

    ·The applicant claims that in 2015, the applicant was involved in capturing and arresting a man named “[Mr A]” following the bombing of [a] Church in [Town], Minya [men] attempted to enter the church through the front gates and “opened fire” in the church.

    ·The applicant claims he was putting out fires inside when he saw ‘[Mr A]’ causing more damage, so the applicant chased him and fought with him until the Egyptian police arrived, arrested and imprisoned him.

    ·The applicant claims that [Mr A] has therefore threatened the applicant saying that he would not let the applicant live and the applicant’s family in Egypt has also become embroiled in this and have been threatened because of the applicant’s role in causing [Mr A] to get caught and incarcerated.

    ·The applicant claims that [Mr A] has since escaped from prison and is known to have travelled to [Country 3].

    ·The applicant claims that  [Mr A]’s father who was a sheikh at a nearby mosque and went to the applicant’s mother’s house to seek revenge, but the applicant was not home and neighbours stopped [Mr A] from entering the house and asked him to leave the applicant’s mother alone.

    ·The applicant claims that he and his family have all suffered mentally and emotionally in the Muslim majority country.

    ·The applicant claims that living in a town with only 50 Coptic families, they have been discriminated against to the point where the applicant has had no choice but to leave his home and he could not file a complaint against the son of a prominent sheikh, and help is not provided to Coptic Christians due to religious persecution and discrimination.

    ·The applicant claims to have fled to [Country 2] as soon as he could make arrangements to leave Egypt, but [Mr A] has since also escaped from prison and has travelled to [Country 3] (sic) to seek revenge.

    ·The applicant also claims that he cannot seek help from the police in [Country 2] as they are also in a Muslim country.

    ·The applicant claims he cannot relocate within Egypt as [Coptic Christians in] the entire country are facing “major persecution” and this has been covered by western media. 

    ·If the applicant returns to Egypt, he will be found, tortured and killed.

    ·The applicant claims that the authorities of that country cannot and will not protect him as [Mr A] has escaped from prison and the police are unable to locate him.

    ·The applicant claims that the [Country 2] police will not protect him as he is a Christian who went against a Muslim.

    ·The applicant claims that both Egypt and [Country 2] are Muslim countries and they do not protect Christians.

19. Prior to the protection visa interview, the Tribunal noted from the decision record that the applicant’s migration agent submitted hundreds of pages of various media articles covering broadly the various attacks against Christians in Egypt, as well as graphic photos of deceased victims inside churches which were bombed by extremists.[4] Some of the material submitted by the applicant pre-interview also included submission letters from the agent dated 21 December 2016 on the attack in Cairo (addressed to Ministerial Intervention Unit), 9 April 2017 on the subject of the Tanta and Alexandria attacks and 26 May 2017 on the subject of the attacks of Christian pilgrims travelling in Minya. The agent’s pre-interview submissions to the Department can be briefly summarised as follows:

    [4] Country information, photos and pre-interview submissions: ‘[Document 2]’ – TRIM records [Reference 3] (51 pages), [Reference 4] (85 pages), [Reference 5] (83 pages) and [Reference 6] (129 pages) refer  

    Submission letter dated 21 December 2016[5]

    [5] TRIM record [Reference 6] (129 pages) refers 

    ·The suicide bomb attack at St Peter’s Coptic Church in Cairo on 11 December 2016 was the worst of its kind in Egyptian history.

    ·This attack contradicts country information that say Coptic Christians are safe under the Sisi government and instead shows that state protection for Coptic Christians are inadequate regardless of the location.

    Submission letter dated 9 April 2017[6]

    ·The attacks on two Coptic churches contradict country information that say Coptic Christians in Egypt are safe under the Sisi government.

    ·There is inadequate state protection for Christians regardless of the location.

    Submission letter dated 26 May 2017[7]

    ·There have been coldblooded attacks and an escalation of sectarian violence against Christians in Minya, more specifically the attack on pilgrims en route to St Samuel’s Monastery.

    ·It is unconscionable for the Department to conclude that Egypt is safe for Coptic Christians.

    [6] TRIM record [Reference 5] (83 pages) refers 

    [7] TRIM record [Reference 3] (51 pages) refers 

20. The applicant was interviewed in relation to his protection visa appplication by the delegate on 30 October 2018. Also present at that interview was the applicant’s migration agent and Solicitor George Botros from Sabelberg Morcos Lawyers.

21. On 2 November 2018, the applicant’s agent submitted a post-interview submission which can be briefly summarised as follows:[8]

    ·The main reason why the applicant fears returning to Egypt is because he fears retribution from “[Mr A]”[9] and his family as the applicant was responsible for the arrest and incarceration of [Mr A].

    ·[Mr A] has threatened the applicant and his family and has instigated a blood feud between them.

    ·There are many Muslim attacks against Christians in Upper Egypt, especially in Minya where the applicant is from.

    ·In Upper Egypt, great importance is ascribed to family honour and shame and this means that a family member or tribe must seek revenge if one of their family members or tribe has been insulted or killed.

    ·People have been killed due to these vendettas in southern Egypt.

    ·The agent submits it is therefore reasonable to presume that the applicant who was directly responsible for the arrest and incarceration of [Mr A] could also become a target of a blood feud.

    [8] Post-Interview Submission prepared by George Botros on behalf of [Mr B]: ‘[Document *]’ – TRIM record [Reference 7] refers 

    [9] The applicant and the agent have referred to this person as either [Spelling 1] or [Spelling 2]. For consistency, I will use the spelling of [Spelling 2] throughout this decision record 

22. On 5 November 2018, [Ms C] from Sabelberg Morcos Lawyers submitted further information to Department which the Tribunal noted in support of the applicant’s application. The material submitted included several graphic photos of deceased Christian pilgrims who were attacked by Islamic militants on 3 November 2018 while on their way to a remote desert monastery, as well as several media articles that covered this incident.[10]

    [10] Post-interview email of photos and media articles about an attack on Christian pilgrims: ‘SUBMISSION: Photos and country information’ – TRIM record [Reference 8] refers 

    Evidence and submissions provided to the Tribunal

23. The applicant’s legal counsel provided the following submissions and documentary evidence:

    ·Main written submission dated 20 October 2022 – explaining the applicant’s circumstances re: ss. 36(2)(a) and 36(2)(aa).

    ·Further documents:

    a.     Copy of first-named applicant’s biodata page (Egyptian) Passport

    b.     Letter of support from [Father D]

    c.     Australian Business Register [Company 1]

    d.     Certificate of Currency Professional Indemnity & Public Liability Combined

    e.     Company Registration Australian Company [No.]

    f.   Endorsement Letter – ‘[Employer]’

    g.     WorkCover Registration [Company 1]

    ·Further submission dated 2 November 2022 (written) form applicant’s legal counsel explaining “the interchangeable terms for “Brotherhood/Muslim Brotherhood” – an expert Linguistic analysis.”

    EVIDENCE AT THE HEARING

24. Based on the information before me, the applicant is a [Age 1]-year-old man born in “Menia” (also spelt Minya), Egypt who is currently engaged to the second-named applicant. According to his visa application form, he is a Coptic Orthodox Christian and claims to speak, read, and write both in Arabic and English. The applicant’s widowed mother and [siblings] all still live in Egypt. The applicant lived in Minya from his birth until [year] when he went to [Country 2] for work. The applicant lived in [Country 2] between July [year] and December 2017 and then he came to Australia. The second-named applicant is a [Age 2]-year-old woman engaged to the applicant. She was born in [City] in [Country 1] and has lived in [Country 2] since October [year]. She lived there until she too came to Australia in December 2017 with the applicant. The second-named applicant is a Catholic and claims to speak, read, and write English, [Language 1] and [Language 2]. Both applicants worked for [Company 2] in [Country 2], prior to coming to Australia. According to the application form, the applicant worked as [an Occupation 1] while the second-named applicant worked as [an Occupation 2] in the company.

25. While in Australia, the applicant has gained his qualifications and is current working as a ‘[Occupation 3].’

26. The Tribunal ask the applicant (through an Arabic-speaking interpreter) what happened in Egypt to cause the applicant to leave Egypt and not want to return? The applicant told the Tribunal that in 2015 while working in [Country 2], the applicant decided to return to Egypt for a vacation. While attending his [local church] with other friends, the church building was invaded by [individuals] who tried to damage the church building and attempted (according to the applicant) to ‘set fire to certain religious artifacts which were in the church.’

1. The applicant, witnessing this attempt to cause sacrileges, tried to hinder some of the assailants. The applicant wished (with others) to stop any further damage being caused to the church. He said that one of the individuals he identified attempting to damage the church was a local Muslim called ‘[Mr A]’. The applicant said that when he saw [Mr A] attempting to cause more damage, he intervened and with ‘force’ tried to ‘restrain him’ until the local police arrived.

2. The applicant identified this Muslim assailant as ‘[Mr A]’. The applicant was asked – how did he know [Mr A]? The applicant said that he and [Mr A] ‘lived in the same area’. The applicant said that ‘[Mr A]’ was a ‘person to avoid’. The applicant added that the same could be said for ‘[Mr A]’s family’. In other words, according to the applicant, [Mr A] and his family members ‘were local troublemakers.’

3. According to the applicant, once he had forcefully restrained [Mr A], he kept [Mr A] until the local police arrived. The applicant said that as a result of his intervention, [Mr A] was charged by the police for the crimes he had committed to the local Coptic church and was taken away.

4. The applicant was asked by the Tribunal – did he provide a statement to the police which would assist them to have [Mr A] convicted for his criminal acts? The applicant said that he did not provide any statements to the police.

5. The applicant said that there was no police report made concerning the incident in the church.

6. The Tribunal asked the applicant  why there was no statement by him, or a police report made concerning [Mr A]’s assaults and criminal damage caused by him on a local church. The applicant admitted to the Tribunal that the main reason why he did provide a statement or seek a formal report from the authorities was because the applicant was ‘scared to do that’ and added, that if he had done so, ‘things would have gotten worse.’

7. The applicant told the Tribunal that others,  like the local Coptic priest and other parishioners, provided the required reports to the local police which assisted in having [Mr A] successfully prosecuted and jailed for his attacks on the local Coptic church.

8. The applicant was asked to explain  what happened following the apprehension of [Mr A] by the authorities. The applicant said that he remained in Egypt for a while and continued with his vacation and did not believe that matters would become as ‘bad as they became’ later.

9. The Tribunal asked the applicant – how did issues arise between himself and ‘[Mr A]’? The applicant said that because he had intervened and stopped [Mr A] from inflicting damage on the local church, he ([Mr A]) harboured a ‘vendetta’ against him for so doing. The applicant described the hate that [Mr A] had for him as “personal.”

10. The Tribunal asked the applicant – when did the anger that [Mr A] had for him become ‘personal’? The applicant said that it became ‘personal’ when ‘the police detained him ([Mr A]) because of me’ (the applicant).

11. The applicant said that [Mr A]’s ‘family’ then came to the applicant’s house to ‘find’ the applicant, but the applicant had ‘left for Cairo…’ where he remained for ‘a month’ and ‘later left for [Country 2].’

12. The applicant was asked – when did this situation surface? The applicant said that it occurred in December 2015. The applicant left with his partner for [Country 2].

    The applicant’s relationship with his partner

13. The applicant told the Tribunal that he met his partner while the two worked for the same employer company in [Country 2].

    What occurred next?

14. The applicant then told the Tribunal that [Mr A] had “broken out of prison” and was determined to locate the applicant’s whereabouts and to exact retribution for having caused him to be captured by the police.

15. The applicant said that [Mr A]’s escape from prison made things worse for him,  knowing that [Mr A] was searching for him. The applicant told the Tribunal that he became very concerned when “his friends told him” that [Mr A] was in [Country 2] and was trying to locate the applicant’s whereabouts.

16. The applicant was asked to explain to the Tribunal  how an escaped prisoner could travel to a foreign country escaping the attention of the authorities in Egypt. The applicant said that “so many can escape prisons in Egypt” and went on to describe [Mr A] being in the “Muslim Brotherhood.” The applicant told the Tribunal that many like [Mr A], “can go to the Sudan or Libya and receive a ‘fake passport.”

17. The applicant told the Tribunal that “anyone that leaves Egypt can go to [Country 2].”

18. The Tribunal asked the applicant to explain –how he (the applicant) knew that [Mr A] was a member of the ‘Muslim Brotherhood.” The applicant said that he knew that [Mr A] was a member of Muslim Brotherhood because [Mr A]’s ‘father’ was an “imam of the local mosque…”, also, the “majority of people” in Minya were in the Muslim Brotherhood or in a way associated with the Muslim Brotherhood.

19. The applicant was asked whether any members of his family been subjected to any threats by [Mr A]’s family. The applicant said “yes” and went on to explain, “they have attacked my house…” This incident occurred in 2015 and any further issues were stopped because (according to the applicant) “the neighbours intervened…”

20. The applicant was asked by the Tribunal whether there have been any recent attacks on his family members. The applicant said “no”.

21. The applicant was asked –why could he not return to Egypt? The applicant said that he could not return to Egypt because “they would kill him.” The applicant explained to the Tribunal that [Mr A]’s family had “many contacts”, “could follow his family members” and that [Mr A]’s family had “a network.”

22. The Tribunal asked the applicant  to explain how this network would operate in finding out where he was situated in Egypt. The applicant said that the “Muslim Brotherhood has a wide network (throughout Egypt)” which is “very loyal”, and this will enable them to “locate him easily.”

23. The applicant was asked – whether he had identified [Mr A] and his family as members of the Muslim Brotherhood? The applicant’s legal counsel told the Tribunal that that the surname ‘[Surname]’ implied that the person having this as part of his name was and is “a person that is connected or part of the Muslim Brotherhood.”

    Further submissions allowed by the Tribunal on the alleged assailant’s surname and its connection or association as claimed to the Muslim Brotherhood?

24. The Tribunal allowed the applicant time to provide further submissions concerning the issue a person’s surname being a form of identification of that person being ‘connected’ or a ‘part’ of a terrorist organisation like the Muslim Brotherhood.

    Any claims attaching to the second-named applicant?

25. The Tribunal asked the applicant and his legal counsel as to why the applicant’s partner was not available to give evidence. The Tribunal also asked the parties to advise whether the Tribunal had to consider any specific claims as they attached to the second-named applicant because of her relationship with the first-named applicant. The Tribunal was told that there were no specific claims made on behalf of the second-named applicant. However, the Tribunal was told that the second-named applicant was “really” worried about the applicant’s situation.

    COUNTRY INFORMATION – CHRISTIANS IN EGYPT AND THE RULE OF LAW

26. Country information indicates that Egypt’s current population is estimated to be around 94.6 million, and with around 98 per cent of Egyptians living in the fertile areas of the Nile Valley and the Suez Canal – an area comprising just three per cent of the country. Virtually all Egyptians reported that they were ethnically Arab in the 2006 census and according to the US Commission on International Religious Freedom (USCIRF), approximately 90 per cent of Egypt’s population are Sunni Muslims. Coptic Christians account for the remainder, along with small numbers of other religious minorities such as non-Coptic Christians, Shia Muslims and Jews.[11]This means there are approximately nine million or so Coptic Christians in the country. The official unemployment rate in Egypt has been around 12-13 per cent for the past five years although the actual rate is likely to be considerably higher. Many of the young unemployed are university graduates and there is considerable frustration over lack of economic opportunities. The Department of Foreign Affairs and Trade (DFAT) assesses that Egypt’s lacklustre economy, low-income levels and poor economic opportunities all act as “push factors” for emigration from Egypt.[12]

    [11] CISEDB50AD4203: “DFAT Country Information Report Egypt”, Department of Foreign Affairs and Trade (DFAT), 19 May 2017.

    [12] CISEDB50AD4203: “DFAT Country Information Report Egypt”, Department of Foreign Affairs and Trade (DFAT), 19 May 2017.

    Christians in Egypt

27. Christians are found throughout the country although they are especially concentrated in Upper Egypt (the southern part of Egypt) and in major cities like Cairo and Alexandria. While there are twelve officially recognised Christian denominations in Egypt, the overwhelming majority of Christians belong to the Coptic Orthodox Church.[13] As mentioned earlier, there are also various Catholic Christian denominations in Egypt, which include the Coptic Catholic Church, the Armenian Church, the Greek Catholic Church, the Latin Catholics (including the Franciscans), the Maronites, the Assyrian Church and the Chaldean Church. Most of these congregations are based in Cairo, particularly in Heliopolis, a suburb built in the early 20th century. Each Catholic Christian community today has at least one church, including in Alexandria, the Suez Canal cities, Tanta, Assiut and Minya.[14]

    [13] CXC904066926: ‘Egypt’s PM forms committee to legalise status of churches’, Ahram Online, 30 January 2017; OGD95BE926168: ‘Egypt – Country Reports on Human Rights Practices 2015’, Department of State, 13 April 2016, at p. 33.

    [14] CXC904666421: ‘In search of Egypt’s Catholics’, Ahram Online, 27 April 2017

28. Egyptian Christians are politically and socio-economically diverse and also hold varied professions and range from the very poor to substantially rich.39 Official figures from 2011 indicate that Egypt has 2,869 churches while there are at least a few dozen Copts in the Egyptian parliament.[15] There are no legal barriers to prevent Christians from attaining visibility in public life and there are prominent and influential Christians in Egyptian politics and businesses. While anti-discriminatory laws and legal protections do exist for Christians, these are not always enforced fairly and Christians may experience some discrimination, especially those living in rural areas.[16]

    [15] CXC904066926: ‘Egypt's PM forms committee to legalise status of churches’, Ahram Online, 30 January 2017; OGD95BE926168: ‘Egypt - Country Reports on Human Rights Practices 2015’, US Department of State, 13 April 2016, p.33 

    [16] CISEDB50AD4203: "DFAT Country Information Report Egypt", Department of Foreign Affairs and Trade (DFAT), 19 May 2017 

29. In urban areas, however, country information indicates that most Egyptians work, live and socialise together with little regard to another person’s religious identity.[17] However, it is also observed that despite the lack of any official policy of discrimination against Christians, Christians are less likely than Muslims to attain senior positions in the civil service, military, and universities. Overall, DFAT has assessed that the discrimination faced by Christians in Egypt tends to be more societal than official in nature and is likely to vary considerably according to geographic location.[18]

    [17] CRF00C22F68: "Egypt: Coptic Christians", Country of Origin Information Section (COIS), 29 May 2017 

    [18] CISEDB50AD4203: "DFAT Country Information Report Egypt", Department of Foreign Affairs and Trade (DFAT), 19 May 2017 

30. According to the UK Home Office, generally speaking, Christians are able to live and work alongside Egyptians of other faiths even though some have faced societal discrimination and violence. Such discrimination and violence tends to be worse in rural areas of Egypt, or in poorer urban or religious conservative areas.[19] Christians in some rural or poorer areas with strong extremist presence and especially where there have been recent attacks on churches and Christian properties may face ill-treatment by non-state actors that amount to persecution. According to the UK Home Office, it finds that Christians are not generally at risk of persecution or serious harm from the Egyptian government, nor are they at risk of persecution or serious harm by non-state actors in urban areas, including in Cairo and Alexandria.[20]

    [19] OGD7C848D91: "Country Policy and Information Note: Egypt: Christians", UK Home Office, 21 November 2016 

    [20] Ibid

31. Country information also confirms there are no legal impediments to internal movement within Egypt, including even for single women, and Copts do relocate within Egypt for a variety of security, economic and social reasons. In the case of Coptic Christians, the Coptic Church also sometimes assists people within their congregation – for example, rural and poor Coptic women, especially single women, who have no support network or who face destitution.[21]

    [21] OGD7C848D91: "Country Policy and Information Note: Egypt: Christians", UK Home Office, 21 November 2016 

    Customary Reconciliations

32. Country information indicates that in Egypt, customary reconciliations are often used to resolve disputes, but the use of customary reconciliation, however, does often end with the Muslim perpetrator being exculpated. Due to social tensions between Christians and Islamist hardliners, small conflicts involving people of different faiths have a tendency to escalate in regions like Upper Egypt. For example, this may include a small business dispute, or an argument over a parking lot, or a rumour that a private building is secretly being used as a church. All such situations can trigger violent confrontations, often ending with one or more persons, usually Copts, getting killed. Egyptian authorities often refuse to refer such disputes to the court system, instead pressuring the parties to resolve their differences through ‘customary reconciliation’. However, this arrangement often sees Muslim perpetrators exculpated while the Copts end up on the losing end.[22]

    [22] CISEDB50AD4979: "Egyptian Copts Under Attack: The Frailty of a National Unity Discourse", Middle East Institute, 13 July 2017 

    Religious freedom, incidents against Christians and state response

33. According to the 2018 US Commission on International Religious Freedom (USCIRF) annual report, religious freedom conditions in Egypt has largely remained the same since 2016. President Abdelfatah al-Sisi has continued his overtures to promote religious tolerance, including attending Coptic Christmas Eve Mass for the fourth consecutive year.[23] As Coptic Christians form the largest of the Christian community in Egypt, there have been attacks against Coptic churches. Al-Sisi has however continued to show significant support to Coptic Egyptians by calling Muslim leaders in the country to promote tolerance and acceptance, and has also provided visible security around prominent Coptic churches in the country.[24] The Egyptian government has also prioritised the construction and reconstruction of several prominent non-Muslim houses of worship, including St Mark’s Coptic Orthodox Cathedral in Cairo.[25]

    [23] CIS7B839411396: "USCIRF Annual Report 2018 – Egypt Chapter", United States Commission on International Religious Freedom (USCIRF), 25 April 2018 

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

    [25] CIS7B839411396: "USCIRF Annual Report 2018 – Egypt Chapter", United States Commission on International Religious Freedom (USCIRF), 25 April 2018 

34. Although the Egyptian government has in some cases failed to provide ready and adequate protection to religious minorities, in 2016, the UK Home Office reported the number and severity of violent incidents targeting Copts and their property actually decreased.[26] Since 2016, however, and after the lull in 2014-2015, country information indicates there has been an increase in violence against Coptic Christians. Prior to the 11 December 2016 Cairo bombing at St Peter and St Paul Church, most incidents were relatively small in scale and occurred in the province of Minya, approximately 200 kilometres south of Cairo, which has a large Coptic population as well as a high concentration of Islamist activists, a high rate of poverty and low levels of education.[27]

    [26] OGD7C848D91: "Country Policy and Information Note: Egypt: Christians", UK Home Office, 21 November 2016 

    [27] CISEC96CF13957: ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.6; CX6A26A6E16143: Attack on Coptic Cathedral in Cairo Kills Dozens’, The New York Times, 11 December 2016 

35. The 11 December 2016 bombing next to Cairo’s main Coptic Orthodox cathedral marked an escalation in the scale of attacks, with Islamic State warning of more attacks to come.[28] The dual church bombings in Tanta and Alexandria on 9 April 2017 indicate that the Islamic State in Egypt has expanded its reach from the Sinai Peninsula and is now capable of launching simultaneous attacks in multiple cities in the country.[29]At least 27 were killed and 78 injured during an attack at St George’s Coptic Church in Tanta, while 17 were killed outside St Mark’s Coptic Church in Alexandria. However, the death toll would have been higher had Egyptian police not stopped the Alexandria bomber from entering the church where the head of the Coptic Church Pope Tawadros II was attending mass that day.[30]Country information indicates that to date, the Egyptian government has continued to respond strongly to the Islamic State attacks against Copts. Following the two church bombings in Tanta and Alexandria in April 2017, the al-Sisi government instituted a three-month state of emergency and declared the formation of a supreme council to combat terrorism and extremism.[31]Country information indicates congregation – for example, rural and poor Coptic women, especially single women, who have no support network or who face destitution.[32]

    [28] CX6A26A6E15066: ‘ISIS Claims Responsibility for Egypt Church Bombing and Warns of More to Come’, The New York Times, 13 December 2016 

    [29] CXC9040665592: ‘Despite Attacks Egypt Maintains Conventional Military Strategy’, The Cipher Brief, 9 April 2017 

    [30] CISEDB50AD3837: ‘Egypt's Coptic churches hit by deadly blasts on Palm Sunday’, British Broadcasting Corporation, 10 April 2017 

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

    [32] OGD7C848D91: "Country Policy and Information Note: Egypt: Christians", UK Home Office, 21 November 2016  

36. Following another Islamic State attack on Coptic Christians travelling on a pilgrimage to a monastery in May 2017 near Minya, south of Cairo, the Egyptian government declared that the attacks “will not go unanswered” and the military subsequently launched airstrikes on militant targets in Libya, which the government claimed were involved in the attack.[33]The government also announced that the families of those killed, as well as those injured in the attack, would receive monetary compensation.[34]DFAT has assessed that occasional violent incidents of communal violence are likely to continue to occur in Upper Egypt and in Minya in particular61, which it has. For example, on 1 September 2018, Muslims attacked Christian homes in El Minya due to their objection of the presence of a church in the area.[35]More recently, on 2 November 2018, unknown gunmen targeted a bus which killed at least seven Coptic Christians and injured 12 near the Monastery of Saint Samuel the Confessor in Minya. In response to the attack, the country’s prosecutor-general Nabil Sadek swiftly dispatched a team of prosecutors to the area to investigate the attack, while President al-Sisi vowed to continue the war against terrorism in the country. A day after the attack, Egyptian security forces killed 19 militants suspected of being involved in this attack, and a month later, Egyptian police killed two gunmen who were said to have carried out the attack when authorities and the Egyptian military found them in Assiut governorate, south of Minya.[36]

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

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

    [35] CISEDB50AD4203: ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.12, 

    [36] CXBB8A1DA36315: "Coptic Diocese Says Group Attacked Christian Homes in Egypt", Associated Press (AP), 01 September 2018 

1. The Coptic Orthodox Church has continued to express confidence in the efforts of the Egyptian state in protecting Copts against sectarian violence. In March 2017 the church issued a statement praising the efforts of authorities in defusing a sectarian incident in a village in Luxor[37]while the Coptic Pope said the Egyptian government was doing its best to secure churches, and that he could ask no more of the government in this regard. On 11 August 2018, Egyptian police thwarted another suicide bomb [38]attack, this time at the Coptic Virgin Mary Church in the town of Mostorod, north of Cairo. No one was harmed and no group has claimed responsibility.[39] However, country information indicates there is disquiet amongst the Coptic community in Egypt. There is increasing widespread scepticism amongst the Christian community that the Egyptian state “does not do enough to protect them” and there has been pressure on the Coptic pope and leaders of the Coptic Church to tone down their repeated support and praise of al-Sisi as more Copts are beginning to say that official gestures of visiting the Cathedral during Christmas was not enough when general attacks against Christians in the country have continued to occur in the last several years.[40]

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

   [38] CXC9040664748: ‘Coptic Pope Tawadros II attempts to reassure Egyptians after attacks on North Sinai Christians’, Ahram Online, 28 March 2017 

   [39] CXBB8A1DA36316: "Egyptian police thwart suicide attack at Christian church", CNN, 11 August 2018 

   [40] CXBB8A1DA38399: "Downplaying Terror Attacks in Egypt", Carnegie Endowment for International Peace, 09 November 2018 

2. Overall, country information nevertheless indicates that in urban areas, the Egyptian government has a capacity and willingness to provide protection to Christians, and generally does so. Copts facing harassment are able to go to a local police station for protection in these areas.

3. DFAT has also assessed that under the al-Sisi government, the security services also see it as being in their interest to be responsive to Coptic grievances.

4. However, societal discrimination at the individual level may nevertheless impact on the level of protection offered to Coptic Christians by security official[41] sand the level of police presence in rural and poorer areas is also generally less than in the cities, and as a consequence there are certain areas in Egypt where Copts are less safe.[42]

   FINDINGS AND REASONS

   [41] CISEDB50AD4203: ‘DFAT Country Information Report – Egypt’, Department of Foreign Affairs and Trade, 19 May 2017, p.12; CISEC96CF13957: ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.15 

   [42] CISEC96CF13957: ‘DFAT Thematic Report: Egyptian Copts’, Department of Foreign Affairs and Trade, 24 November 2015, p.15 

   The Issue of credibility

5. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

6. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” (see, United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status Geneva, Switzerland (1992) at paragraph [196]. However, the Handbook also states, at paragraph [203] that:

   “The benefit of the doubt should, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run contrary to generally known facts.”

7. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims.

8. The Tribunal must bear in mind that if it takes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: see, MIMA v Rajalingam (1999) 93 FCR 220.

9. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

10. The Tribunal notes that it is appropriate to take into account an applicant’s delay in lodging an application for protection visa in asserting the genuineness, or at least the depth, of the applicant’s claimed fear of persecution, see Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.

    Assessment of the Applicants’ claims

11. The Tribunal after listening to the applicant’s evidence at the hearing and after considering the applicant’s written submissions and attached documentary evidence, has a number of significant concerns regarding the evidence of the applicant.

    Is the applicant a Coptic Orthodox Christian?

12. At the hearing, the applicant told the Tribunal that his faith was that of the Coptic Orthodox Christian faith. The applicant said that he was born into a Coptic Orthodox family and had attended the Coptic Orthodox church throughout his life while living in Egypt. The applicant told the Tribunal that while here in Australia, he has attended church services. Indeed, the Tribunal noted the letter dated 7 October 2022 signed by [Fr. D] who among other matters describes the applicant as a “dedicated and highly valued Coptic Orthodox Christian…” and that (while in Australia) he, “…practices within the Church as a regular and steadfast member of the Coptic Orthodox Egyptian community.”[43] Therefore, the Tribunal  having considered applicant’s background and his responses concerning his faith and his attendance at two Coptic Orthodox Churches while living in Melbourne together with the letter submitted from [Fr. D] cumulatively, it accepts and finds that the applicant is of the Coptic Orthodox faith as he claimed.

    [Church] attack incident in [Town], Minya

    [43] see, AAT File (Documents) Letter from Coptic Orthodox Diocese of Melbourne letter dated 7 October 2022 in the name and signed by [Fr. C], [Official position].

13. The applicant told the Tribunal that he was present and witnessed an attack on his local church when he returned to Egypt from [Country 2] for a holiday in 2015. The Tribunal noted that the applicant found it difficult to recall which day in the month of September 2015 that the ‘attack’ on his church occurred and the reasons he was at the local church. It was the applicant’s evidence that on the day of the attack he was with his friends at the church when they were surprised by persons who arrived at the church and began breaking things and attempting to inflict permanent damage to church property. The applicant said that these persons committed sacrilege, destroying religious artifacts, but did not describe these assailants as armed with any weapons though in an angry rage.

14. The applicant claimed that one of the perpetrators was ‘[Mr A] whom he recognised. The applicant claimed that [Mr A] was trying to cause more damage, so the applicant intervened to try to stop him. According to the applicant, as the local authorities arrived some of the assailants ran away but the applicant restrained with force [Mr A] and kept him down until the police came. The applicant told the Tribunal that until the police arrived, the applicant ‘struggled and fought’ with [Mr A] to prevent him from escaping. In time, the police arrived and [Mr A] was arrested. The applicant told the Tribunal that because of his direct intervention [Mr A] was caught by the police, tried, and imprisoned for acts of criminal damage to church property.

15. After this incident, the applicant recalled that he returned to his home and continued with his vacation and later returned to his work in [Country 2]. When the Tribunal asked the applicant whether he was a witness for the police concerning [Mr A]’s criminal actions, the applicant told the Tribunal that he was “scared to do that…” and if he had provided any statement to the police against [Mr A] “…it would have made things worse.” The applicant told the Tribunal that others, the priest, and other parishioners provided statements as to what occurred which enabled the police to successfully prosecute and imprison [Mr A] for his violent actions.

16. The Tribunal noted the applicant’s legal counsel made the submission that it was the legal position in Australia when assessing a refugee claim that there is no requirement for an applicant to “prove or corroborate their claims”[44] The authorities cited for this proposition were: Ejueyitsi v MIMA (2006) 151 FCR 289; [2006] FCA 328; Huang v MIMA [2001] FCA 901; Mohamed v MIMA (1998) 83 FCR 234, [1998] FCA 485 (“Mohamed”). The attention of the Tribunal was directed to Mohamed, and to following dicta of Hill J at 246:

    There is a reference in the Tribunal’s reasons to the fact that a particular claim was not independently corroborated. That reference did not appear to play any real role in the Tribunal’s reasons. However, I have noticed a tendency in reasons issued from time to time by the Tribunal to suggest that the evidence of a witness should not be believed because it lacks corroboration. There is no requirement in law that the evidence of an applicant or, for that matter, any other person requires corroboration before it is accepted. Of course, there is no principle of law either that the Tribunal must accept what a witness says. It is for the Tribunal to assess the veracity of a witness and, from all the material facts before it, to find facts and reach a conclusion. {italics and bold are the Tribunal’s} Corroboration or lack of it should not distract the Tribunal from its statutory task.

17. What is of note from his Honour’s dicta in Mohamed is ‘that there is no principle of law either that the Tribunal must accept what a witness (the applicant) says’. More to point, his Honour indicates that it is for the ‘Tribunal to assess the veracity of a witness (applicant), from the material facts before it’. What is of concern to the Tribunal when considering the credibility of the applicant in what he claims to be the truth (the facts) is that he provides very little evidence concerning this incident which he claims played such a significant role in his life. The applicant submitted no police reports (even of others who made statements to the police as he stated), news articles reporting the attack, photographs of the damaged church or any letters from the priest of the church confirming the part the applicant played which saved the church from irreparable damage. Moreover, and adding to the Tribunal’s concerns about the credibility of the applicant and what he claimed had occurred is that he has provided no evidence of the person he described as ‘[Mr A]’ except to tell the Tribunal [Mr A] lived not far from the applicant’s home. The applicant has not submitted any substantial evidence to verify his claim, or to show that he (the applicant) was present at the church at the time when the claimed attacked occurred or that he was the person who gave chase to the alleged criminal – [Mr A]. Also, there is no evidence submitted to the Tribunal that substantiates that this [Mr A] is and was as the applicant claimed the son of a ‘local Imam’. These facts are not there.

18. Further, the Tribunal noted that after this alleged incident which occurred sometime in September 2015, the applicant did not leave Egypt to return to [Country 2] until December 2015 – three months after the alleged attack. This is indeed behaviour which incites curiosity, doubts, and further questions about the applicant’s credibility. It stands to reason, that if the applicant was in genuine fear for his life, – fearing a reprisal by [Mr A] or others (associated with [Mr A] and his family) on him either in his hometown or elsewhere in Egypt (because of [Mr A]’s family’s networks as was claimed he had or his family had) – why remain in Egypt for a considerable period of time – why not leave for [Country 2] immediately, if [Mr A]’s people were asking the applicant’s mother as to where the applicant was? A person in immediate danger would have immediately exited Egypt especially if he genuinely believed and knew his enemies had networks capable of finding him. This behaviour as described by the applicant to the Tribunal triggers doubts in the Tribunal’s mind as to the credibility of applicant’s claim that there was a feud or ‘vendetta’ held against his person by [Mr A] or [Mr A]’s father or his broader family. Again, the Tribunal does not accept and finds that the situation as described by the applicant concerning the church incident and the later consequences triggered by a person described as [Mr A] and his family members is not credible and had been provided to the Department and in turn to the Tribunal as a means to attract Australia’s protection obligations. It is an attempt for the reasons expressed above which in the opinion of the Tribunal fails to convince as being the truth and a substantial reason for the applicant (and his partner) leaving Egypt.

    The claim [Mr A] went to [Country 2] to find the applicant

19. The applicant claimed at the hearing that his persecutor, [Mr A], managed to escape from an Egyptian prison and from Egypt through a means and way not explained with clarity to the Tribunal. Then, the applicant’s persecutor was searching for him in [Country 2], and this caused the applicant and his partner to leave for Australia. The applicant provided no explanation as to how [Mr A] escaped when asked by the Tribunal. The applicant told the Tribunal that he learned about [Mr A]’s escape from ‘friends’. When asked how [Mr A] had known the applicant was in [Country 2], the applicant claimed that everyone in his part of neighbourhood knew that the applicant was living and working in [Country 2] since [year]. The applicant also said that [Country 2] was a small country, and it was very easy for [Mr A] to locate the applicant and therefore the applicant had to leave [Country 2]. 

20. In a post-hearing submission, the issue was addressed by the applicant’s legal counsel.[45] The applicant’s legal counsel provided a number of links in an ‘attempt to mitigate the doubts raised by the Tribunal concerning this claim as follows:

    [45] see, AAT File no. 1837228 – Applicant Legal Counsel’s written submission dated 2.11.2022.

    ‘Egypt sentences 31 people to death over police killing and prison escape’, Middle East Eye (MEE and Agencies) (13 July 2021).

    "In the city of Ismailiyah, the local criminal court sentenced 13 men to death over an escape from a prison in October 2016… Six of the convicted men, who were accused by court officials of being hardline Islamists, were in custody… Hundreds of people, many of them accused of being supporters of the Muslim Brotherhood, have been sentenced to death since Morsi was overthrown by current Egyptian President Abdel Fattah el-Sisi." [46]

    [46] ‘Egypt sentences 31 people to death over police killing and prison escape’, Middle East Eye (MEE and Agencies) (13 July 2018) <

    ‘Surviving Repression: How Egypt’s Muslim Brotherhood Has Carried On’, Carnegie Middle East Center (11 March 2019).

    "The Muslim Brotherhood’s centralized, pyramidal structure has remained unbroken, but it has been supplemented by an External Egyptian Brotherhood Office, made up of higher-ranking exiled members. Among them are central figures in the Guidance Office, such as Mahmoud Ezzat and Ahmad Abdul Rahman, or higher-ranking members such as Amr Darraj and Yahya Hamid. Because Turkey, Qatar, and London are centers of the Muslim Brotherhood’s administration, the exiled leadership is out of reach of the Egyptian authorities. Therefore, despite its reduced activity, the Brotherhood remains, with the help of modern technology, a sizable opposition force to the Sisi regime." [47]

    [47] ‘Surviving Repression: How Egypt’s Muslim Brotherhood Has Carried On’, Carnegie Middle East Center (11 March 2019) <

    ‘Egypt’s Political Exiles: Going Anywhere but Home’, Carnegie Endowment for International Peace (29 March 2019).

    "In this highly polarized atmosphere, a broader wave of migration of lower-ranking Brotherhood members and supporters of all ages began. The members who fled came from various economic and social backgrounds as well as age groups, and they chose destinations such as Qatar, Turkey, Sudan, North America, Europe, and Asia. This group of politically displaced people is highly diverse socioeconomically, though all of them had some kind of Islamist ideological or political affiliation, and many of them left the country illegally. A few prominent members of the Brotherhood, the Freedom and Justice Party, or the Morsi administration managed to escape prosecution and went into exile." [48]

    [48] ‘Egypt’s Political Exiles: Going Anywhere but Home’, Carnegie Endowment for International Peace (29 March 2019) <

    ‘Disillusioned and in exile, some Egyptian Islamists turn to suicide’, The Arab Weekly (3 November 2019).
    "The Muslim Brotherhood, the oldest Islamist organisation in the Arab region, has branches in almost every country. Its rise to power in Egypt should have emboldened Islamists in all other countries where uprisings known as the “Arab spring” took place in 2011." [49]

    [49] ‘Disillusioned and in exile, some Egyptian Islamists turn to suicide’, The Arab Weekly (3 November 2019) <

    ‘Three convicts escape from Egypt prison under mysterious circumstances’, Gulf News (11 January 2021).

    "Three Egyptian men, convicted of terrorism charges and awaiting their death penalties, managed to escape from the Tanta public prison in Egypt’s Western Province." [50]

    [50] ‘Three convicts escape from Egypt prison under mysterious circumstances’, Gulf News (11 January 2021)<

    ‘Egypt protests: Cairo prison break prompts fear of fundamentalism’, The Guardian (31 January 2011).

    "Hundreds of members of the banned Muslim Brotherhood Egypt's leading Islamist political party, were among thousands of prisoners who escaped during overnight mass breakouts from four jails." [51]

    [51] ‘Egypt protests: Cairo prison break prompts fear of fundamentalism’, The Guardian (31 January 2011)

    <

    ‘Egypt’s Muslim Brotherhood rejects ‘struggle for power’, exiled leader says’, Reuters (29 July 2022).

    “Shifting Middle East diplomacy has seen two countries which offered refuge to Brotherhood supporters in the last decade - Turkey and Qatar - mending relations with an axis of states committed to crushing the group - Egypt, the United Arab Emirates and Saudi Arabia. Turkey last year asked Egyptian opposition television channels operating on its territory to moderate criticism of the Cairo government as it tries to rebuild relations with Egypt.” [52]

    ‘Egypt’s Muslim Brotherhood finds havens abroad’, Washington Post (6 November 2013).

    “Very few of the leaders of Egypt’s Muslim Brotherhood escaped the recent military-led crackdown on their movement. Some of those who did flew out of Cairo after paying thousands of dollars in bribes to airport security officials, while others took more convoluted routes, boarding planes in distant airports en route to friendlier nations.

    One of those nations is Qatar, the tiny, oil-rich Persian Gulf state that helped bankroll rebels and Islamist democracy advocates throughout the Arab Spring and is now quietly absorbing the exiles that one country’s stumbling experiment in democracy has generated.

    Cast out by — or, perhaps, saved from— the harshest political crackdown in recent Egyptian history, a handful of Muslim Brotherhood and other Islamist leaders found refuge here in the Qatari capital, while others travelled to Istanbul, London and Geneva.”[53]

    ‘Egyptian Muslim Brotherhood Scholar Sheikh Mohamed Al-Sagheer To Al-Jazeera: Boycotting French Products is Obligatory For All Muslims; Any Economic Contracts With France Are Null And Void’, The Middle East Media Research Institute (MEMRI) (24 November 2020).

    “Egyptian politician Muhammad Al-Sagheer, who served as an advisor to the Egyptian Minister of Religious Endowments and an MP under Morsi's Muslim Brotherhood government, said in a November 20, 2020 interview on Al-Jazeera Network (Qatar) that boycotting French products is the least that the Muslims can do to oppose France. Sheikh Al-Sagheer, who was speaking from Doha, said that France is a colonialist state that is harbouring "extreme Catholicism" and that is waging a war on Islam and the Prophet Muhammad. He added that any economic or business contracts between Muslims and French companies are null and void.” [54]

    [52] ‘Egypt’s Muslim Brotherhood rejects ‘struggle for power’, exiled leader says’, Reuters (29 July 2022).

    <

    [53] ‘Egypt’s Muslim Brotherhood finds havens abroad’, Washington Post (6 November 2013) <

    [54] ‘‘Egyptian Muslim Brotherhood Scholar Sheikh Mohamed Al-Sagheer To Al-Jazeera: Boycotting French Products is Obligatory For All Muslims; Any Economic Contracts With France Are Null And Void’, The Middle East Media Research Institute (MEMRI) (24 November 2020) <

1. Though the country information submitted does provide for the possibility that the applicant’s alleged persecutor, [Mr A], could have ‘escaped’ from an Egyptian prison and that this was possible partly because official corruption and maladministration prevalent in the Egyptian penal correction system, and a fugitive could find his way to other neighbouring Muslim countries, but the Tribunal does not accept that the applicant’s situation as he described it was credible.

2. The Tribunal is not convinced by the applicant’s explanations as they relate to his alleged persecutor, [Mr A]. Despite the threat alleged, the applicant has not provided any evidence to demonstrate that his family had been targeted or seriously harmed by [Mr A]’s family during the time [Mr A] was allegedly in prison. There is also no evidence that [Mr A] was imprisoned or that he had escaped from prison. Further, there is no evidence to show that [Mr A] had travelled to [Country 2]. It is also not clear to the Tribunal from the evidence before it, as to how long [Mr A] was in [Country 2] before the applicant found out about this from his friends in Egypt. Also, though the applicant had claimed that [Mr A]’s family (his father) did confront the applicant’s mother about the applicant’s whereabouts, there was no evidence submitted to the Tribunal that any harm had come to the applicant’s mother or any other family members in the last few years while the applicant has been in Australia. Indeed, if [Mr A] and his family genuinely wished to seek revenge against the applicant as the applicant claimed (which in Tribunal’s opinion was not the case) for [Mr A]’s imprisonment and to restore [Mr A]’s honour, the Tribunal would have expected [Mr A]’s family to have targeted and seriously harmed the applicant’s family in Minya province earlier on. That was not the case.

3. Moreover, it was of interest to the Tribunal to note that despite being informed by his friends about [Mr A]’s escape and presence in [Country 2] in or about September or October 2017, the applicant and his partner did not exit [Country 2] until December 2017. The applicant had claimed that it was easy for [Mr A] to locate him in [Country 2] because it was a small country. Regardless, of these fears from the facts before the Tribunal, [Mr A] never found the applicant in [Country 2] (if he was in [Country 2]) even in the two or three months that the applicant was in [Country 2] before he and his partner decided to leave for Australia. This delay in leaving [Country 2] in the Tribunal’s opinion raises doubts in the Tribunal’s mind as to the credibility of the applicant’s claim to fear harm from a person called [Mr A] for whatever reason. Therefore, the Tribunal concludes and finds that any of the applicant’s explanations for leaving [Country 2] not to be credible. If the applicant was in genuine fear that a person named [Mr A] was going to find him with ease in [Country 2] and make an attempt on his life, the Tribunal would have expected the applicant to have fled earlier and not later as he did. For these reasons, the Tribunal has serious credibility concerns about the applicant’s claims as far as they concern a person named [Mr A], his family, and his association with others or for his intentions or motivations for seeking to do harm to the applicant. Based on the evidence (which is minimal) before the Tribunal, and having considered the applicant’s responses to the Tribunal’s questions, the Tribunal does not find that a person by the name [Mr A] was or is seeking to find the applicant to do harm to him for the reasons claimed, or that this person, if he exists, had gone to [Country 2] for the purpose to specifically locate and harm the applicant.

   Lack of state protection in Egypt for Christians

4. The applicant claimed that (1) he did not seek help from the Egyptian police as there was corruption within the Egyptian police and this prevented him from filing a complaint against [Mr A] – the son of prominent ‘sheikh’ and (2) help from the authorities is not provided to Coptic Christians due to the prevalence of religious persecution and discrimination. The applicant also claimed that he could not ‘relocate’ within Egypt as Coptic Christians are facing major persecution”. Persecution which has been reported by the media. Based on the country information and evidence considered by the Tribunal, the Tribunal does not find that the applicant faces any threat of serious harm or persecution levelled against him on account of his religion from anyone, whether an individual or a group of persons. There is no evidence that the applicant was being targeted or singled out for persecution by the Egyptian government, security authorities, or the police when he was in living or on vacationing in Egypt. Also, there was no evidence that the applicant would be targeted by organs of the state because of his religion as a Coptic Orthodox Christian.

5. The Tribunal having considered DFAT’s 2017 country information report for Egypt, accepts that Christians (whatever denomination) can and do experience societal discrimination in Egypt but the Tribunal notes that this attitude varies to a considerable degree and depends on where one is geographically located – those residing in rural areas can face difficulties in obtaining justice when needed.[55] Having considered this information, while the Tribunal accepts that the applicant is from Upper Egypt and from the province of Minya, there is no evidence that the applicant had been targeted for his religion – being a Coptic Orthodox Christian. The applicant’s evidence (which the Tribunal noted) was that he worked in [Country 2] (a majority Muslim country) for several years and (before coming to Australia) had returned to his homeland for a vacation, also in 2015 and this displays to the Tribunal that the applicant’s demeanour had not been influenced by fear for his safety or for his life.

   [55] CISEDB50AD4203: “DFAT Country Information Report Egypt”, Department of Foreign Affairs & Trade (DFAT), 19 May 2017.

6. The Tribunal notes and accepts that the Coptic Orthodox Christian community in Egypt has been  targeted by the Islamic State and other extremist groups. The country information the Tribunal has referenced makes it clear that the current Egyptian government has and continues to take action to protect the Coptic Christian community – regardless of the differences that support takes in the different parts of the country or when applied on individuals. An example noted by the Tribunal being  in Alexandria and Cairo, where the Egyptian authorities and government have been willing to provide assistance and protection to the Christian community. Though attacks on Coptic Christians have occurred and continue to occur in Egypt, the Tribunal acknowledges that no state can guarantee a safety of its citizens that is complete and absolute. What the Tribunal needs to satisfy itself of is whether the state (in Egypt) is willing and has the ability to provide adequate protection to any of its citizens. After considering the country information, the Tribunal concludes and finds that there is a willingness on the part of the current Egyptian government to provide protection to Coptic Orthodox Christians in Egypt. Further the Tribunal finds and concludes that there is a willingness on the Egyptian government’s part to provide protection to all Christians in Egypt.

7. Moreover, the Tribunal noted that Egypt has a functioning government and a reasonably effective security apparatus in place and the government has and continues to display that it is not only willing but taking actual steps to protect Christians – for example, police and security forces have been posted to guard churches, especially during important religious events, as when police stopped the Alexandria suicide bomber from entering the church where Pope Tawadros II was attending mass in April 2017, and the thwarting of a suicide bomb attack at a Coptic church in Mostorod north of Cairo by Egyptian police in August 2018.[56] Again, in November 2018, Egypt’s prosecutor-general Sadek was also swift in sending prosecutors to Minya to investigate the bus attack on Coptic Christian pilgrims while President al-Sisi has vowed to continue the war against terrorism in the country.[57] Applying this information to the applicant (in the alternative) assuming it was credible (which it is not), the police came to the applicant’s assistance and arrested a criminal who had attacked the church the applicant was attending at the time. This demonstrates to the Tribunal a willingness and ability of the Egyptian authorities to protect Christians.

   [56] CXBB8A1DA36316 “Egyptian police thwart suicide attack at Christian church”, CNN, 11 August 2018.

   [57] CXBB8A1DA37845 “At least 7 killed, 12 Injured in terrorist attack on bus carrying Copts in Upper Egypt’s Minya”, Ahram Online, 02 November 2018.

8. The Tribunal accepts and recognises that attacks against the Christians – especially the Coptic Orthodox Christians could surface again in Egypt – such is the fabric of Egyptian society at present. However, the Tribunal considers and finds that this risk is general in its nature and not specifically targeting the applicant. In particular, though the security situation in Upper Egypt or in Minya province is not safe for Christians, the Tribunal there was nothing which prevented the applicant from relocating to another part of Egypt, such the major cities of Cairo (which he did for a while before leaving for [Country 2]) or Alexandria where the availability of state protection is at it maximum. As the Tribunal acknowledged above [58] despite the scepticism amongst Coptic Christians, country information is clear that there is still a functioning administration in control of Egypt and that there is a reasonably effective police force in existence and functioning system of justice. Overall, the Tribunal finds that the state in Egypt could provide protection against persecution to the applicant if he required it. The Tribunal also finds that the state is willing and able to offer such protection. Furthermore, having considered the available country information before me, the applicant being a Coptic Orthodox Christian, the Tribunal concludes and finds that as provided for in s. 5LA of the Act, there are effective protection measures available to the applicant in Egypt if he so required if he had a well-founded fear of persecution which the Tribunal having considered the entirety of the evidence before it concludes and finds that he did not.

   [58] As did the delegate in his decision

   Further claims made by the applicant at the hearing

   Links of [Mr A] and [Mr A]’s family to the ‘Brotherhood’ or ‘Muslim Brotherhood’

9. The Tribunal noted that at the hearing the applicant claimed and subsequently “continues to assert”, that [Mr A] and his family are “associated with the ‘Brotherhood/Muslim Brotherhood’ because they are “fanatic extremists”.[59] The Tribunal expressed concerns about the applicant’s credibility because the claimed association of [Mr A] and his family had not been mentioned in the applicant’s protection application with Department nor mentioned in previous legal submissions submitted to the Tribunal.

   [59] See, AAT File, Applicant’s Counsel’s post-hearing written submissions, see pp.2-3 et.al.

10. The applicant’s legal counsel submitted that the term “[Surname]” and “Brotherhood/Muslim Brotherhood” could be used “interchangeably” and to “reference fanatic extremists”.[60]

    [60] see, the applicant’s legal counsel’s post-hearing submission (written) on this issue at p.3.

11. The Tribunal made it clear to applicant at the hearing, and to his legal counsel that this was an attempt to introduce new evidence into the applicant’s circumstances. The Tribunal could not comprehend what the applicant’s legal counsel claimed that an individual’s surname (in this case, ‘[Surname]’) had a direct link to the ‘Brotherhood’ or ‘Muslim Brotherhood.’ The Tribunal again, provided the applicant and his counsel with an opportunity to engage with any noted experts in the Arabic language to explain the “interchangeability”. 

12. On 30 October 2022, a statement was submitted by the applicant legal counsel signed by a [Mr E]. [Mr E] is a NAATI Certified Interpreter in the Arabic and English languages and a has a [Qualification].

13. [Mr E] wrote the following:

    “I wish to provide this statement in order to answer two language-related questions posed to me by [the applicant’s legal counsel] … The two questions relating to a highlighted word in the [applicant’s solicitor’s] email “[ekhwan] brotherhood.” I wish to acknowledge that the context in which the word has been mentioned: by an Egyptian Coptic Christian who is the applicant in AAT; has been considered.

    1.     The literal meaning of the highlighted word “brotherhood”. In an Arabic (Egyptian dialect) context is Ekhwan or Al Ekhwan.

    2.     There are other culturally interchangeable meanings of the highlighted word, some of which are:

    A.Extremists

    B.Fanatics

    C.Hardliners.”

14. The Tribunal does not doubt the ability of [Mr E] to interpret – he is an interpreter and well-qualified to interpret but not the expert linguist as the Tribunal requested. The Tribunal does not accept the applicant’s legal counsel’s submission that “[Surname]” in some way exposes the applicant’s alleged persecutor as a person who was associated with extremists or that his family had ties with local Muslim organisations which were part of or associated with the outlawed ‘Muslim Brotherhood’. Such claims were introduced only as an attempt to legitimise the applicant’s claim for protection from Australia as being one having been persecuted and will be persecuted by religious extremists. The evidence the Tribunal finds is not there from the facts before the Tribunal.

15. Therefore, having considered all the evidence before the Tribunal and the information submitted later by the applicant and his legal counsel, the Tribunal finds that the applicant has not been persecuted for any reason or reasons including his religion (being a Coptic Orthodox Christian) as provided for in s. 5(1) (a)(b) or (c) and is not a ‘refugee’ as defined in s. 5H of the Act and as a consequence the criterion in s. 36(2)(a) of the Act is not satisfied.

16. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).

17. Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s. 36(2)(aa) of the Act.

100.   Overall, the Tribunal is satisfied that if in future, the applicant (and his partner) return to Egypt and face whatever threat because of their religion or other issues, there are mechanisms in the Egyptian state, including a reasonably effective police force that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). The Tribunal is not satisfied that the applicant and his partner would face any religious persecution from any named individuals or groups of individuals and in particular, in the applicant’s hometown of Minya. Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk he (or his partner) will suffer significant harm.

1. For the reasons given above the Tribunal is not satisfied that any 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.

   RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION

102.   In the applicant’s pre-hearing submission dated 20 October 2022 a request was made for the Tribunal to refer this case to the Minister for consideration in the event the applicant is found not to meet the criteria for the grant a Protection visa under s.36 of the Act.

103.   The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’.

104.   The Tribunal note that under s. 417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with compassion and care’ where an individual’s situation involves ‘unique and exceptional circumstances, which are said to include:

·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen.

105.   Since the Applicant’s arrival in Australia, he has been employed by [Employer] as [an Occupation 3]. The applicant has been employed by [Employer] since September 2020 and from the evidence before the Tribunal is an invaluable team member who performs his employment responsibilities to a very high standard. The applicant, from the evidence before the Tribunal, is well-liked and respected by [relevant people], colleagues, staff, and supervisors. The applicant’s role in his employer’s organisation is a vocation which provides the applicant with significant satisfaction and professional development and has allowed him to work closely with the broad-based Victorian community.

106.   The applicant, it was submitted, commenced his employment with [Employer] on 18 September 2020 and continues to work with his current employer.[61]

[61] see, AAT File – Applicant’s legal counsel’s legal submission dated 20 October 2022 – for the hearing.

107.   The Tribunal noted the written submission by [Ms F], the [Job title] who described the applicant as an essential employee and that his continued employment was essential to the continuation and on-going development of [a work] sector in Victoria.

108.   In the applicant’s capacity as [an Occupation 3], he fulfils the following duties and responsibilities [redacted]:

·

109.   The fulfilment of these duties and responsibilities by the applicant signifies that he is committed to his ongoing employment and providing [service] for [relevant] people and this concern is at the forefront of the applicant’s career aspirations, further reflecting the applicant’s commitment to his vocation and employment.

110.   The removal of the applicant will heavily impact Australian citizens, both emotionally and in physical terms, and without this [service] [relevant] people will suffer.

111.   The Tribunal notes that Australia’s [work sector] is under considerable distress due to the pandemic and that he is likely to be offered work in a regional [Workplace] in the State of Victoria. There appears to be a strong case for the applicant to remain to remain in Australia as it would result in significant benefit during these exceptionally trying times.

112.   For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Minister/and or the Department that it/he conduct an assessment of applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister or his Department’s consideration.

decision

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

Peter Vlahos
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…