1837281 (Refugee)

1837281 (Refugee) [2022] AATA 4394 (21 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Lidia Soliman
CASE NUMBER:  1837281
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Luke Hardy
DATE:21 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 September 2022 at 1:11pm
CATCHWORDS
REFUGEE – Protection visa – Egypt – religion – Coptic Christians political opinion – applicant had provided conflicting, inconsistent and contradictory information over time – delay in seeking protection – Tribunal is not satisfied that the applicant is at risk of serious harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a family of six citizens of Egypt.
[Mr A], his son [and] daughter [Miss B], first entered Australia on [date] November 2014 on one-month visitor visas. They returned to Egypt, departing Australia on [date] December 2014. All six applicants arrived in Australia on [date] March 2017 on one-month visitor visas. They lodged their PV applications on 21 April 2017. The delegate refused to grant the visas on 30 November 2018. The applicants then sought merits review by the Tribunal and the matter was allocated to me. I find the review application valid.
[Mr A] alone appeared before the Tribunal on 15 September 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent.
The Tribunal hearing was facilitated by an interpreter in the Egyptian Arabic and English language medium.
The adviser drew my attention to medical reporting on file, asking me to take into account the possibility that [Mr A]’s capacity to recall facts might be affected by cardio-circulatory issues for which he has recently been undergoing treatment. I have duly taken the advice into account. There was some discussion early in the hearing in which I asked [Mr A] to focus on questions requiring, at least in the first instance, a “yes” or a “no.” I accept that I displayed some frustration at the time. The adviser pointed out where some questions and answers were not fully translated. These issues were dealt with as they arose and the hearing proceeded. Overall, I am satisfied that [Mr A] was not prevented by circumstances beyond his control from giving cogent evidence in this matter.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, any of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
The claims in this case evidently relate to the s.5J(1)(a) “religion” criterion.
All six applicants were included in the original PV application as “Part C” applicants, which usually means that an applicant is making claims in his or her own right. However, it is only [Mr A] who has made any substantive claims in this matter, the overall applications essentially indicating the other five applicants are dependent on the outcome of [Mr A]’s application.
The applicants all lived from 1995 to 2010 in Imbaba, which is a dense urban area on the western bank of the Nile in the greater Gizeh district of Cairo.[1] They evidently moved nearby to another densely populated Gizeh district called [District 1] in 2010. There [Mr A] claimed to have lived and worked there as a [Occupation 1] and retailer of [supplies]. He claims his home and [shop] were adjoining rented properties. He claims he respectively lived and worked on these properties for seven years until March 2017 when he came to Australia. He previously lived elsewhere in Cairo and was born and raised in Minya in Upper Egypt.
[1] Google Maps: Gizeh,
[Mr A] also claimed to have worked from 2002 to April 2014 as a [Occupation 1] for a company [called] [Company 1]. In addition, he worked as a [Occupation 1] for [Company 2], [from] May 2014 to March 2017.
In his primary application, [Mr A] claimed he was harassed and interrogated by police, sheiks and community members in Egypt. He claimed he was detained for questioning on many occasions during which he was often used as a scapegoat. He claimed he and his family members were often abused physically and verbally in the street. He claimed his car was vandalised. He claimed his business and home were vandalised. He claimed his building projects were destroyed and his workers harmed.
[Mr A] claimed that he was from a family with Coptic clergy in its background. He claimed he was well-known in the Coptic church for many years in Egypt having been involved in various church community projects ranging from assisting the poor, overseeing church renovation and building projects, and returning people to the church after they had been kidnapped by Muslim extremists. He claimed that he and his family had suffered many instances of persecution which peaked in recent years, forcing them to leave their home and go into hiding during their last few weeks in Egypt. He claimed he and his family had been targeted by [Mr C], known as [name], and [Mr D], who he called extremist fanatics with large criminal networks. He claimed they were known by the authorities, who are unable to control them for fear of civil backlash.
[Mr A] claimed he was targeted by these people because they believed he was building a house to use for church services and because he stopped one young man called [Mr E] from converting to Islam. He claimed that the fanatics put pressure on him by showing him a conversion certificate made out in the name of his daughter [Miss B]. He said he had to protect his daughter from being kidnapped while trying to appease her potential kidnappers. He evidently claimed that the church helped him by providing a man to pose as her Christian fiancé. Elsewhere in his application he said that the purpose of implicating his daughter to pressure him into converting to Islam, against his principles.
[Mr A] evidently claimed that he tried to obtain police assistance. He said that some police tried to persuade him to retract his statements or else they would forward the case to internal security. He evidently said that other police had scapegoated him in matters in which he had not been involved.
[Mr A] evidently claimed that he and his family hid in another district “just before” coming to Australia. The move out of the family home in [District 1] is not shown in his chronology of addresses and, in any event, he contradicted this claim in oral evidence at the Tribunal hearing, when he said and confirmed that he and his family resided in their rented property next to the [shop], which he continued to operate, right up until they departed for Australia. He seemed to contradict the claim about trying to hide when he said that to do so would be useless given Islamic extremist networks in Egypt.
For the purposes of this review, [Mr A] submitted a copy of the delegate’s decision record in which a summary of his evidence is provided, along with discussion of what the delegate, for his part, considered to be potentially critical issues. I understand that I must make my own independent findings on the evidence as a whole. It is useful, however, to cite the claims in this matter as they stood at the time of the delegate’s decision.
[Mr A] was interviewed on 28 March 2018. The delegate summarised his claims as follows:
·The applicant’s family are members of clergy and well known servants of the church.
·For many years he has been involved in various church community projects including assisting the poor, overseeing church renovations or building projects to return those who have been kidnapped by extremists and forced to convert to Islam.
·He and his family have experienced many incidents of persecution and they were forced to go into hiding for a few weeks before they last departed Egypt.
·He and his family have been targeted by extremist Islamists, [Mr C] and [Mr D]. They are extreme fanatics who consider that it is their duty to convert others to Islam. They are known to the authorities but they authorities are unable to control them.
·They targeted him as they believed he was building a house for church services, he prevented a Christian boy from converting to Islam and the radicalisation of another young Muslim.
·He was shown a false document which claimed that his daughter had converted to Islam. He hid his daughter as he was concerned she would be kidnapped and a young man from their church posed as her fiancé.
·He was harassed and interrogated by the police, sheiks and community members.
·He was detained and questioned on many occasions. His car, home and business were vandalised.
·He and his family were attacked which resulted in significant harm to his daughter.
·His building project was destroyed and workers were harmed.
·He fears if he returns to Egypt his daughter will be kidnapped and she will be forced to convert to Islam and his family will be harmed or killed.
[Mr A] evidently explained to the delegate that his original migration agent who, I note, has since been de-registered, omitted important claims. The delegate summarised the interview as follows:
The applicant claimed he is seeking protection as his life and the life of his family is in danger. He claimed to fear that he will be killed by Sheik [Mr C] and Sheik [Mr D] who are prominent members of a local mosque if he returns to Egypt. He claimed to fear he will be harmed as he prevented [Mr E], a friend’s son from converting to Islam. He claimed that these [two sheiks] are connected to the local authorities, the security forces and the military ...
The applicant … claimed he attended church services with his family on Sunday and he would occasionally attend church services alone. He was asked if there were occasions when he did not attend to church and he claimed that when he was threatened he avoided attendance at church services. He was asked when he was threatened and he responded around 2013. He was asked if this was the first occasion he was threatened in Egypt and he responded that when he first attended the [church] he was threatened. When asked to be more specific about the timing of these threats he responded in 2013 after the problems with the repair of the church. When asked who had threatened him he claimed Sheik [Mr C] and Sheik [Mr D] who had previously threatened him in 2010. It was put to him that he earlier claimed he started receiving threats in 2013 and he responded that the threats had been ongoing for a long time as he was very active in the church, he was well known in Egypt and he attended people’s houses. He was asked about his activities in the church besides his attendance at church services. He claimed that he was member of a church committee to help others in need, he did home repairs and collected donations to financially help others.
The applicant claimed that on [date] December 2014 his business in Egypt was burnt down and his wife and children were injured in an attack. It was put to the applicant that he did not mention this incident in his statement and he responded that he had discussed this incident with his Migration Agent. When asked why he had waited until [December] 2014 to return to Egypt he responded that he had travelled to Australia to “recuperate” … It was put the applicant that it was surprising that he would remain in Australia until [date] December 2014 given the serious nature of this incident and he responded that he was psychologically unwell and his wife was being cared for by her own brothers ...
The applicant was questioned about his claims that he was concerned his daughter would be kidnapped. He claimed that he was told that if did not bring [Mr E] they would kidnap his daughter and convert her to Islam. He claimed that in December 2016 Sheikh [Mr D] presented him with a document which stated that if you did not bring [Mr E] back they would kidnap his daughter [[Miss B]] and make her a Muslim ... He was asked about his actions after he received this threat and he claimed that he did not inform his daughter of these threats. He claimed that she was engaged and her finance would always walk with her for safety. It was put to him that this contradicted his statement in which he claimed that young man from his church posed his daughter’s finance and he responded that it was not true ... He reiterated that his daughter was engaged and his fiancé escorted her to prevent any attacks.
The applicant claimed that he was detained on [date] March 2014 for three days and charged with the illegal repairs of the church. He was asked how many times he was detained in Egypt and he responded “just this time.” When it was put to him that according to his statement he was detained and questioned on many occasions he responded he was detained [but] released within twenty four hours ...
[[Mr A]] claimed that a member from his church informed him that his son [[Mr E]] was intending to convert to Islam. He claimed he would visit his home to help his son to “come back to Christianity.” He was asked about the timing of this claim and he responded 2013. When asked to be more specific he responded March 2013. He was asked why he was personally involved in this situation and he responded that it was part of his service to the church and if anyone wanted to convert to Islam he was tasked to bring them back to Christianity. It was put to the applicant that as this is a very sensitive issue in Egypt why the church asked him to perform this task. He responded that it was not fitting for the church to employ a priest to do this, they employed others to do this work and this is the kind of work you do in secrecy. It was put to him that I did not find credible the Coptic Church would task him with this type of activity in his community. He was questioned why as a married man with four young children the church would place him in this position. He responded that he was a part of committee and each member of that committee had a task to perform. He was questioned why as a member of this committee he was tasked with this role he responded that he was acquainted with this situation due to his long service in the church and he had a lot of experience. When asked what experience he had he responded that he would bring the child to his address, talk to him and accommodate him, go to his address and involve him with the activities of the church. He was asked what he said to convince him not to convert to Islam and he responded that he told him that they were raised and born as Christians and it is not befitting for a Christian. He claimed these conversions are forced by the Muslim community. It was put to the applicant that due to sensitivities of this issue it would be reasonable to expect that church leaders would become involved and he responded that it was a difficult situation and it was a service he rendered to the church …
[[Mr A]] claimed that on [date] July 2014 he was attacked at his business address and both he and his daughter were seriously injured. As evidence of his claim he provided photographs. He was asked who attacked him and he responded “a lot of people”. He claimed Sheikh [Mr C] and Sheik [Mr D] had mobilised the crowd to attack him. He claimed while his wife was taking his children to school he was sitting in his shop and they entered asking him “where is [Mr E] you Christian infidel and if you do not bring [Mr E] now they would kill him”. He claimed that while he was holding his daughter they hit him on the head and he lost consciousness. He claimed they damaged his shop, they stole money and damaged his car. He claimed that when he reported the incident to the police they questioned him as why he was at the police station and they refused to file a police report. He claimed that Sheikh [Mr D] had very influential people working at the police station. He claimed that the church was aware of this incident. It was put to the applicant that he had not provided supporting evidence from his Church that he was attacked due to his religious activities. He responded that the church was aware of his circumstance and they knew about the attack. He was asked if had evidence that this attack was a result of his religious activities and he responded that if he had filed a report at this police station they would not allow him to do this. Given the lack of supporting evidence he was questioned as to whether this was a criminal incident and he responded that he would not lie and the church was aware of this incident …
[[Mr A]] reiterated his claim that he when he attended the police station he was threatened with serious harm if [he] filed a report of the incident. It was put to the applicant that there is State Protection in Egypt and he responded that “not for Coptic Christians”. It was put to the applicant that he did not mention in his written statement that he was attacked by Islamists at his business in Egypt for reasons of his religious activities and he responded that he had told his Migration Agent about this incident, maybe she had not added this to his application and these were genuine incidents that had happened to him in Egypt ...
Given his claims that in July 2014 both he and his daughter were attacked [[Mr A]] was asked why he did not seeking [sic] protection in Australia after he arrived in November 2014. He responded that he arrived on a visitor visa to recuperate in Australia. It was put to him that he had claimed that immediately after arriving in Australia that his business was burnt down and his family were attacked. He responded that he travelled to Australia to visit and he did not intend to stay in Australia. I note that the applicant returned to Egypt in December 2014 and he applied for a visitor visa in February 2016. It was put to him that his delay in seeking migration to Australia raised doubt that he was concerned for his safety and he claimed that the problems were just starting and had not escalated …
[emphasis added]

The delegate referred to the history of the application that had led to the issuing of visitor visas to [Mr A] and his family in January 2017. That application had initially been refused by the delegate but the decision was set aside by the AAT, differently-constituted. The delegate in the present matter noted in his decision that [Mr A] had told the AAT (under oath) that he had not experienced difficulties in Egypt:
It was put to the applicant that at his AAT hearing conducted on 11 January 2017 he reported that he lived in Giza and Cairo [and] considered that these areas were relatively safe [stating that] both he and his family had not suffered any violent incidents. It was [then] put to him [by the delegate] that he had reported that his church in Egypt had not experienced violence.
Confronted with this at PV interview, [Mr A] is reported to have responded that he had been concerned during his AAT hearing that his telephone was being monitored. He claimed this was why he had not mentioned at that hearing that he had experienced violence.
The delegate also put to [Mr A] that claim that he was targeted by Islamists in Giza and Cairo was not supported by country information, with DFAT and other country reports observing that Coptic Christians living in urban areas do not experience difficulties with Muslims. [Mr A] evidently responded that what happens “on the ground” in Egypt is not being reported and that Coptic Christians are being targeted.
Evidence given to the Tribunal
[Mr A] told me he closed down his shop in January 2017 and also gave up the lease on his house around the same time. He said that up until then he had been able to run his business with a totally Christian clientele, the local Muslims avoiding doing business with him. He indicated that Muslims preferred doing business with Muslims and that he earned enough from his clientele. He said there were other Christian-owned shops in the district but they were scattered amongst Muslim and generic businesses and dwellings.
[Mr A] talked about when he and his two children came to Australia for a month in 2014. He said he had asked his brother, a Coptic priest in Australia, to invite him because he had been feeling bad in Egypt over something that had happened to him and his children. He said that Muslim fanatics attacked him and his daughter [Miss F] in his shop in 2014. He said this was the first time they eve assaulted him although there had been face-to-face threats before. He said his children had also been threatened.
I asked [Mr A] to describe explicitly what threats had been made. He said the terms of the threats were “How are you serving all Christians.” I put to him that there did not appear to be any explicit element in such terms as could be said to contain an explicit threat, although I could see that a person asked this might feel intimidated. He then said, “You have to close down your shop. Stop working.” I put to him again that, though intimidating , this did not sound like a threat either. He later said the threats were more like, “Take your business somewhere else.” He indicated that he knew the specific intimidators. Overall, he appeared to describe hostile speech from the same group of local individuals that continued more or less the same over a period of several years.
I asked [Mr A] if any Muslims were trying to close down other Christian businesses in the area and he said he only witnessed what happened to his own business. He said that some other Christians told him they were being subjected to similar harassment.
I asked [Mr A] if Christian shops still operate in his home area and he said he did not know. He said he had not tried to find out if any businesses continued to be pressured in the way he claimed his had been. I asked him why not and he said the subject was too painful for him and that he did not want to know anything about it.
[Mr A] referred me to the recent fire at a church in Imbaba. He indicated that he had heard from the Internet and his local priest in Egypt that the fire had been an act of terrorism committed by Muslim fanatics. Independent news reporting, including Christian news services, however, indicates that the fire which spread to the church’s adjoining nursery, killing 41 persons including several infants, was sourced to an electrical short-circuit in an air conditioning unit.[2] One Christian news agency[3] reported on 18 August 2022:
[2] “Egypt church fire: Triplets and twins among 15 children killed,” BBC News, 16 August 2022, “Egypt Church Fire Kills 41, Sparks Blame of Building Law’s Legacy,” Christianity Today, 18 August 2022,
[3] “Egypt Church Fire Kills 41, Sparks Blame of Building Law’s Legacy,” Christianity Today, 18 August 2022, authorities stated they arrived almost immediately after the 9 a.m. fire was first reported. Eyewitness testimony varied; some stated 15 minutes, others over two hours.
Abu Seifein means “the father of two swords” and is the Arabic moniker for second-century martyr Saint Mercurius, whose icon reflects his military origins.
But the word church may give the wrong impression to overseas audiences, as the sanctuary was located between ground floor shops and towering residences. Illegally repurposed in 2007 from one of many tightly packed apartment complexes, the now-charred chapel traced back to an era when Egyptian Christians were unable to obtain permits to build new houses of worship.
The law was changed in 2016, and a Coptic legal expert stated Abu Seifein was officially licensed in 2019. Since the latest batch in April, the slow-moving process has now legalized 2,401 churches and affiliated service centers.
Yet many remain in their original condition, below safety codes, and according to the law full legality can only come once all regulations are satisfied.
Abu Seifein's four-story building housed two daycare facilities, and 18 children died in the blaze. Around 100 people were present at worship that morning; authorities stated most deaths—which included the local priest—were caused by smoke inhalation and the resulting stampede.
One family lost a set of five-year-old triplets, their mother, and grandmother.
The head of Egypt’s evangelical community was “deeply pained,” and offered condolences to Pope Tawadros, patriarch of the Coptic Orthodox Church.
“We pray that God will give comfort and patience to the people,” stated Andrea Zaki, “and bless the injured with speedy recovery.”
The fire was caused by a short circuit to the air conditioning unit, sparked by an overload when the private generator did not shut off upon the return of government electricity. The death toll could have been worse, as most Egyptian Christians worship on Friday—the Muslim day of communal prayer and the start of the official weekend ...
[Mr A] said he had photographs of the aftermath of the fire, but I did not request that he show them to me as there are many published in Internet news sites and I accept, in any event, that the fire occurred.
[Mr A] told me that on [date] July 2014, he and his daughter [Miss F] were injured when a small group of Muslim fanatics came into his shop, vandalised it, stole merchandise, stole money from the till, vandalised his car and injured both him and [Miss F], the both of them requiring stitches. He produced photographs of himself and his daughter both sutured. The photographs appeared to have no date or obvious context apart from describing injuries caused by lesions, perhaps due to some impact or other. Looking at the photographs as they are, one might say that they were not inconsistent with assault; however, I must make my decision on the evidence in this matter as a whole.
[Mr A] submitted a letter from a friend named [name deleted]. The letter is dated 29 July 2022, and says :
I … witnessed [Mr A] with severe injuries to his head as he received several blows with a sharp tool. He was covered in blood and unable to talk. Both him [sic] and his daughter [Miss F] had injuries.
As a result of his injuries he needed sixteen stitches. His child [Miss F] had a laceration to her head that needed four stitches. She needed stitches to her leg as well. When people living in the area were asked about the reason for what happened to [Mr A], they said that [Mr A] was involved in bringing back a Christian man from Islam to Christianity. I took [Mr A] and his family to stay with me in my house for a period until the situation calmed down.
The information provided in the letter is not contemporaneous, which does not in itself mean that weight should not be given to it. It says the author “witnessed [Mr A] with severe injuries to his head as he received several blows with a sharp tool,” but it does not state that the author was with [Mr A] and his daughter in the place and at the time the injuries were sustained. The lack of detail about what “sharp tool” may have been used leaves me unsatisfied that the witness ever saw the injuries being incurred. Hence, and notwithstanding the use of the word “as” in the translation, I do not accept that the letter bears first-hand witness to the moment or circumstances of the infliction of the injuries.
[Mr A] submitted a letter dated 3 August 2022 from a doctor in Egypt saying the following:
After checking hospital records, it was found that on [date]/07/2014, Mr [A] attended our emergency department as he was suffering from cut wounds to his head for which he received 16 stitches. He came with his daughter who was suffering from cut wounds to her head for which she received 4 stitches. She also received 3 stitches to her right leg.
[Mr A] said that he contacted his brother soon after the above-mentioned attack and that it took about three months before visas for himself and two of his children were be issued. This is consistent with a process that involved application, refusal by the Department and subsequent successful review by the then-Migration Review Tribunal (MRT). It is likely, given the ultimate success of the application, that [Mr A] did not mention anything during that process about having suffered religious persecution.
[Mr A] claimed that on [date] December 2014, after he and the two children had come to Australia, local Muslims came into his shop and vandalised it again, stealing and setting fire to the premises. He described the shop as having been burnt down.
[Mr A] said he returned to Egypt because his wife and other children were still there. He indicated that he knew then that he and his family had to get out of Egypt. However, he said that, though he had little to no money to spare, he restored the shop and ran it until he left for Australia in 2017. He said he received some financial help from his brother the priest in Australia.
I asked [Mr A] what steps if any did he take to get his family out of Egypt and he said through his adviser that his brother lodged visitor visa applications for them all in February 2016. That would have been more than a year after the alleged fire. I expressed concern that he did not do anything in the weeks or months more closely following the alleged fire. In reply, he said he depended on being sponsored by his brother in Australia who was busy in 2015 with his church. I expressed concern that [Mr A] did not at least try to get his family away from Gizeh and he said he could not afford to do so. Previously he had variously stated that he did hide in other locations and that it was pointless to do so due to Islamist fanatics having sophisticated criminal networks; now he was saying it was a matter of cost.
I asked [Mr A] if there was any documentary evidence of the fire in his shop, such as photographs like the ones of his and his daughter’s treated injuries, or insurance documents, or news stories, or perhaps even a mention in a contemporaneous church newsletter. There might even have been correspondence between [Mr A] and his landlord. In response, [Mr A] said the police said they would only take an interest if someone had died. He said that the insurance system in Egypt is different from insurance in Australia. He also said that his church “would have nothing to do with it.” I asked him if he might not have taken photographs, even on a mobile telephone, in the spirit of keeping a record of outstanding events like the injuries evidenced in the photographs submitted before. In response, [Mr A] said, “No-one thought this would happen again.”
Whereas [Mr A] said that his church in Gizeh distanced itself from the troubles of its parishioners by having nothing to do with the latter, he did submit a 7 August 2022 letter from a Gizeh priest, asserting that [Mr A] had a good reputation, his having been
… involved in many of the church services […] such as the maintenance work and service for those who do not have a source of income as well as those who are forced to forsake their Christian faith. This resulted in him and his family facing persecution and harassment at the hands of the extremist groups and receiving death threats. Therefore, they had to travel to Australia for their safety.
It struck me as incongruous that [Mr A]’s parish or diocese “would have nothing to do with” contemporaneously documenting attacks on its faithful and yet consider itself competent to produce a letter dated eight years after alleged events, asserting that they had indeed occurred.
Positing that there was indeed some independent evidence of fire having destroyed [Mr A]’s shop on [date] December 2014, the adviser referred me to another letter, this one dated 25 July 2022, written by [the] brother-in-law of [Mr A]’s wife, [Ms G]:
My wife, [name] …and I were visiting [[Ms G]] at [Mr A]’s shop. [Ms G] was replacing [Mr A] until he comes [sic] back from Australia ...While we were visiting them on [date]/12/2014, we witnessed some of the people living in the same area assaulting [Ms G] and her daughters[name] and [Miss F]. The shop was burned, and money and goods were taken away from the shop. [Ms G] and her daughters were left with superficial wounds. [My wife] and I took then to our place to look after them until [Mr A] … come back. We contacted [Mr A] through his friend … to tell him of what had happened. [Mr A] was extremely sad and wanted to come back to Egypt. However, I said to him they are safe with me until he comes back …
This letter, submitted before the Tribunal hearing, appeared to speak to the delegate’s concern about [Mr A] not having returned sooner upon learning of the treatment of his wife and daughters and destruction of his shop in December 2014. The evidence in the letter is nevertheless vague and lacking in detail. As far as the evidence suggests, the author was able observe the event closely and at some length but somehow was not injured or otherwise drawn into it, apart from offering [Mr A]’s family refuge after it ended. The author’s presence in the shop on the occasion is not mentioned in any evidence preceding the 2022 date of its writing.
Thus far into the Tribunal hearing, [Mr A] had not mentioned in oral evidence the matter of his having worked to save Christians like [Mr E] from conversion to Islam. He had hitherto said that he was attacked by Muslims because he was a Christian who helped his church with building projects and with aid to the poor and because of his doing business in a mainly Muslim area. I prompted him several times to give me other examples of work he did in or for the church that attracted the ire of local Muslims and nothing came. He said that the Muslims were angry because he repaired a local church’s bathroom. Asked again if there were any other things he did for the church that caused him to be threatened, he referred to his daughter having had her hair pulled because she and her family were “infidels.” I put to [Mr A] that there was a whole conflict described in earlier evidence that was entirely missing from his oral evidence so far and he then mentioned the police questioning him about renovations. I asked him if I had then heard all of his claims about Egypt and he said he could not go back to Egypt.
It seemed that no matter how many times I tried, one way or another, to prompt [Mr A] to mention the [Mr E] case, nothing on that topic was forthcoming. I asked him then about the [Mr E] case. He then said that f I had asked specifically about [Mr E], he would have answered.
The adviser then asked if she could intervene and I allowed her. She said that I had merely asked [Mr A] what other activities for his church might have attracted threats from the Muslims, whereas the work in getting [Mr E] to return to Christianity had been done on behalf of a committee called the [Committee 1] Association. She thus indicated that her client might reasonably view his work for that association as being separate from his work for his priest or the church as such and therefore should not reasonably have been expected to respond by talking about [Mr E] in such a context. I considered this suggestion but give no weight to it, not least because [Mr A] described the committee as one that performed tasks at the request of the priest, and also described the priest as at least a de facto or unofficial member of the committee. Also, he said himself that the work of returning “converts” to the church was something he did for the church. Although it was put to me that [Mr A] would not have considered his work for the [Committee 1] as work for “the church” per se, he was now saying that his local parish priest was part of the committee. The argument to the effect that [Mr A] would not normally have viewed the committee’s work as church work struck me as a defence of his repeated failure to mention it in the face of many prompts.
I asked [Mr A] how the four people associated with the committee, including the priest, worked together. [Mr A]’s description in response was vague: he said the priest was there but did not like to be in the picture because he might be killed by Muslim fanatics. I asked him how and why the priest would allow members of his own flock to face such risks from Muslim fanatics in the claimed circumstances, and he said that the returning of “converts” was something that the three committee members excluding the priest just talked about by themselves, trying to work out solutions as they went. He indicated here that the priest knew, or preferred to know, little or nothing about it.
I asked [Mr A] for more information about the committee, for example, any information he could provided about what the committee is doing these days. Initially, he said he did not know what his fellow committee members were doing lately, because he had left Egypt, but then went on to say, “They’re being threatened, according to the priest.” Asked later about what his fellow committee members were doing lately, he said he did not know anything about them. Then, albeit vaguely, he contradicted that statement, suggesting he had received some news from the priest, who had told him, “They are trying: if they can do something, they do[it].”
[Mr A] confirmed that the problem with [Mr E] went back to 2014. He confirmed that [Mr E] never went through with the process of converting to Islam. He told me that he took [Mr E] in and hid him until things “blew over.” He confirmed that [Mr E] was rescued in 2014. However, he also implied that the attack on his shop in July 2014 was a reprisal against his work in shepherding [Mr E] back to his church. Further, he said that a group of irate Muslims including the sheikh (or chair of the mosque) accosted him in December 2016 and said, “If we don’t get [Mr E] back, we’ll take your daughter by force.” He said they were talking about [Miss B] at the time. He said they showed him a false conversion certificate made out in her name to intimidate him into handing over [Mr E].

I put to [Mr A] that it seemed odd for the sheikh and others to descend upon him in this way, already more than two years after he had shepherded [Mr E] back into the Christian community, whereas nothing had apparently happened to him, [Mr A], between December 2014 and December 2016. In reply, [Mr A] said, “Exactly,” which appeared to confirm that nothing had happened to him or anyone else related to the [Mr E] case in that period; then he said, “We tried to move [[Mr E]] to different places.” I asked [Mr A] for more detail about the places to which [Mr E] was moved, and he said that this information was know only to the priest, who never told anyone. Here, in describing the active involvement of the priest, [Mr A] appeared to contradict his evidence about the priest keeping his distance from rescuing “converts.” Meanwhile the evidence about having to move [Mr E] from place to place over two or more years seemed to contradict the earlier claim about having hidden him until things had blown over. Also, none of these responses helped to explain how or why virtually nothing happened to [Mr A] himself between December 2014 and December 2016.
I invited the adviser to make closing oral submissions. She drew my attention to a number of instances where the delegate had questioned why [Mr A] had apparently not mention specific claims in his original PV application. The adviser asked me to consider that [Mr A] had consistently maintained that he had articulated these claims to his first adviser who did not include them in his original PV application which she did not read back to him for his confirmation, in spite of what the declaration in the PV application form indicates. She asked me to consider this behaviour attributed to the first adviser to be consistent with an approach to her role that later saw her suspended or re-registered as a migration agent. I have duly considered this position.
The adviser also asked me to consider that after [Mr A] returned to Egypt and Gizeh in December 2014, he asked his brother (the priest) in Australia to help him apply for visas for his family to travel to Australia. The adviser said that the delay in applying until February 2016 should not be attributed to [Mr A], but to the brother being preoccupied for over a year by matters like his own church work in Australia.
I note a letter from a priest in Sydney who refers to [Mr A]’s purported problems in Egypt. [Mr A] appears to be the source of that information in the letter. The priest also strays, apparently, into speculation that [Mr A]’s stress at the thought of having to return to Egypt was a significant factor in heart attacks he suffered in 2018 and 2021, and in a car accident he had in Sydney in 2021. I have given no weight to this letter as its author has no clinical expertise in the matters it describes and is not corroborative of claimed events in Egypt.
Independent country reporting
I have had regard to the following information from DFAT[4] about the general situation for Coptic Christians in Egypt:
3.33 There are no legal barriers to prevent Christians from being visible in public life, and a number of Christians have become prominent and influential in Egyptian politics and business. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be under-represented in senior civil servant roles, and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.
3.34 Most Christians viewed the post-2011 Revolution ascendency of the Muslim Brotherhood with considerable apprehension. They regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi’s public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians (see Security Situation). Local sources report that Christians generally remain strong supporters of Sisi, although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt ...
3.36 DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature, and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means (see Judiciary). Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities.
[4] DFAT Country Information Report: Egypt, 17 June 2019
The same DFAT report provides the following information about acts of violence against Christians in Egypt:
3.21 In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark’s Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks ...
3.24 The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya. In one particularly high profile incident in May 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine.
3.25 Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. In December 2018, the government announced it would form a higher committee tasked with developing a general strategy to prevent and confront communal incidents. While acknowledging Sisi’s personal engagement on the issue, Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.
3.26 DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.
I have had regard to DFAT’s observations[5] regarding religious conversion in Egypt:
3.7 There is no statutory prohibition in Egypt on converting from one religion to another. In order to convert to Christianity, authorities require documents from the receiving church, identity documents and fingerprints. Checks are also made on criminal history as conversion often requires a change in name. Converts to Islam will generally have their conversions recognised and their identity cards changed accordingly without difficulty or delay. However, courts and government officials have generally interpreted sharia as prohibiting conversion from Islam. Authorities have at times reportedly refused to recognise such conversions, including through failing to amend a convert’s national identity card (and corresponding record) to reflect their chosen faith. This has significant ramifications for personal status issues, such as marriage and divorce, and the state’s view of the religious identity of any children born to a convert. Egyptian children obtain a national identity card at age 16, with their religious identity matching that of their parents (their Muslim parent, in the case of a mixed marriage between a Muslim man and Christian woman).
3.8 A 2011 court ruling allowed Christians who converted to Islam and then back to Christianity (generally in order to more easily access divorce) to amend their identity cards to reflect their return to their original faith. DFAT understands, however, that only a small number of such individuals have been permitted to do so, and that several thousand others are still waiting to have their cards changed back.
3.9 Converts from Islam to other religions are not generally subject to officially sanctioned violence, detention or surveillance. However, they face significant societal discrimination in the form of rejection, ostracism and sometimes violence from their families or communities. Such discrimination is worse in poorer and rural areas, which tend to be more socially conservative. The level of discrimination is likely to be higher if the convert engages in proselytization.
3.10 DFAT is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam. Such reports have occasionally led to increased tensions and clashes between Christian and Muslim communities, particularly when the alleged abductions involve family members of Christian priests. However, there is little evidence to suggest that forced conversions occur as a regular phenomenon. DFAT assesses that most religious conversions in Egypt occur either to enable a person to marry someone from another faith, or to access divorce.
3.11 DFAT assesses that a person converting from Islam faces a moderate risk of official discrimination. They may experience difficulties in having their conversion officially recognised, including on national identity cards, which may affect their ability to access government or religious services. DFAT assesses that a person converting from Islam faces a high risk of societal discrimination in the form of rejection, ostracism and possible violence from their families and communities.
[5] Ibid.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] 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.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220 .
[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[8] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[9]
[8] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[9] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that [Mr A] has had surgery for a circulatory condition and that though recovering, he may yet have been slowed or affected by stress in his responses to some questions at the hearing. I do not draw any negative inferences from the time it took for him at the hearing to mention explicitly the “convert rescue” aspect of his claims generally or the case of [Mr E] in particular. My findings in relation to those claims are limited an assessment of the quality of the evidence he eventually gave.
I also accept that there were some questions and answers that were not initially translated to the adviser’s satisfaction. I am satisfied, however, that we resolved those issues in a timely fashion.
Overall, I am satisfied that [Mr A] was not significantly affected by circumstances beyond his control from giving meaningful answers to questions I asked, or to requests for detail that I made, at the hearing.
[Mr A]’s claims relate to the s.5J(1)(a) “religion” criterion.
I accept that [Mr A] and the other five applicants are all Coptic Christians. I accept that they lived in the greater Gizeh area. There is some minor discrepancy between the oral evidence and claims in the original PV about how long they lived in Imbaba and whether they moved nearby to [District 1] in 2010. I consider the discrepancy insignificant, particularly since there is no specific event of any potential relevance claimed to have precipitated the 2010 move. Imbaba and [District 1] are virtually next to each other.
I accept that [Mr A] was a [Occupation 1] by trade in Egypt. I accept that he performed [services] commercially and also did occasional [work] for his church, probably on a voluntary basis. I accept that [Mr A] ran a [store] next to his home in [District 1] for several years from 2010 to March 2017. I accept that he also worked from 2002 to April 2014 as a [Occupation 1] for [Company 1], and from May 2014 to March 2017 as a [Occupation 1] for [Company 2].
I give some weight in this matter to the fact that [Mr A] chose to set up shop in Gizeh in 2010. This indicates to me that he believed the site and its location capable of sustaining his business. I give some weight to the fact that, according to some of his evidence, he operated the shop and lived next door to it for some seven years up until March 2017 which was the same month in which he last departed Egypt. I do not accept, on the evidence before me, the claim to the effect that he moved out of his residence with his family and hid in a different location for several weeks before coming to Australia in March 2017.
[Mr A] gave vague and unimpressive evidence about the circumstances of Coptic Christians and their homes and businesses. I find it hard to believe that [Mr A], a businessman who, on some of his evidence moved from one location in Gizeh to open a business in another nearby, continued all the way through the years up to and since 2017 not knowing much about what other Coptic families were going through in Imbaba or [District 1] or neighbouring districts, except for generalised comments about the community from his priest. I find his evidence about relying on the priest as a source of information about potential harm suffered by other local Copts disingenuous, as he emphasised to me at one point that the priest did not keep an eye on such things, preferring to have “nothing to do” with them. I was not impressed with [Mr A]’s claim to the effect that, now he is out of Egypt, he has tried to forget about the circumstances and wellbeing of other Copts in his local area, including, in some of his evidence, the other members of the [Committee 1] committee. It is reasonable to expect that a person in his situation, with the commitment he claimed to have to the wellbeing of his parish, would have maintained some interest, particularly given the number of people he called upon in 2022 to write letters for him. I give some negative weight to [Mr A]’s claimed lack of interest in keeping up to date with the community for which he supposedly cares.
The information [Mr A] gave me about the recent tragic fire in the Imbaba church is inaccurate to the extent that [Mr A] appeared to refer to it as an example of Islamist terrorism unleashed on the Coptic community in his local area. He said this information was available on the Internet, implying that he saw it online, but all my searches of reports about that fatal incident, including from Christian news sites, lead to the source of the fire being an air conditioner that short circuited when the public electricity supply rebooted one Sunday morning. In indicating that the incident somehow supported his case, [Mr A] appeared to mislead. In any event, I give no weight in this matter to the recent church fire in Imbaba.
In view of the contradiction between [Mr A] relying on his in Gizeh as the source of information about harm or pressure suffered by local Copts and the assumption that his priest and the church prefer to have nothing to do with such suffering, I give no weight to information that [Mr A] claims to have obtained from his priest or priests in Egypt, or to the 7 August 2022 letter in which the priest said that [Mr A]’s “maintenance work and service resulted in him and his family facing persecution and harassment at the hands of the extremist groups and receiving death threats.”
Before I proceed to make findings about the alleged threats, the alleged attacks on the shop in July and December 2014 and the December 2016 confrontation, I shall summarise my findings so far and then discuss the evidence about [Mr A]’s involvement with the [Committee 1] committee and its “convert rescue” operations.

I find that [Mr A] stayed more or less in the same neighbourhood in Gizeh from 2010, choosing to establish a business there. I find that the business wet well. I find, on [Mr A]’s testimony that the business took no custom away from Muslim businesses. I am not satisfied that Coptic Christian businesses were being systematically targeted, or targeted at all, for reasons of operating in a mostly Muslim area, which is what [Mr A] described his neighbourhood as being. I find that [Mr A] has been selective and inconsistent about the interest his church parish takes in the wellbeing of its parishioners. I find that [Mr A] has had no genuine interest in keeping up to date with potentially relevant circumstances in his former neighbourhood in Egypt. I find this lack of interest incongruous with his very recent efforts to gather a number of recently-written testimonials about him and the other applicants. I do not accept [Mr A]’s suggestion that the recent church fire in Imbaba was caused by religious extremists, or that it happened due to anything other than a power surge that happenstantially tested inadequate maintenance on the part of its tenant, the church itself. I do not rule out that [Mr A] was misleading in contextualising the church fire as evidence of the harm he claims to face.
Moving onto the evidence about the [Committee 1] committee, I find that [Mr A]’s evidence about his involvement with such a committee and in the operations to which he referred was vague and contradictory and, hence, unimpressive and unbelievable. On the one hand the priest was an active presence in the committee and yet, on the other he stayed out of the committee’s operational decisions to avoid being killed. [Mr A] did not provide a satisfactory explanation as to why the priest would let the other three committee members risk their lives if he himself was not prepared to do so. Rather, his explanation struck me as fanciful when he said that he and the other two lay members of the committee just talked amongst themselves informally and improvised activities as they went along. This makes it hard for me to believe that there was ever a case involving a young male called [Mr E] who fell into danger of converting to Islam.
Meanwhile, the evidence of what happened to [Mr E] and the committee’s operation to rescue him was vague and contradictory. On the one hand he was rescued and the committee hid him until things blew over; on the other hand they never blew over: there still being demands for [Mr E] to be handed over more than two-and-a-half years after the rescue had purportedly occurred. On the one hand, the committee was in charge of the rescue, with the priest keeping his distance from the whole affair for the sake of his own life; on the other, the priest took sole responsibility, away from the committee, for hiding [Mr E] for years and years, without anything evidently happening to him. These factual problems compound with the factual deficiencies in the evidence about how the committee went about its work. I do not believe on the evidence before me that the case of [Mr E] was ever an actual case, which is to say that I do not accept as truthful any of [Mr A]’s claims about having served his church in the recovering of Christians seeking conversion, or being forced to convert, to Islam. That is to say, I do not accept as truthful the facts on which the attacks and threats against [Mr A] and his family largely depend.
[Mr A], however, claims there was the [date] July 2014 attack and the [date] December 2014 attack, followed, two years later by the December 2016 confrontation. He clams there were other instances of harassment involving physical assault including hair-pulling. He cites the photographs, a medical report and letters from relatives as evidence of these things having happened.
Firstly, I repeat the conclusion that I give no weight to the 7 August 2022 letter from the priest: it is vague and the contradictions in [Mr A]’s evidence about the local priest’s attention to such matters undermine that witness’s competence to say what he says.
As to the medical report, I am somewhat concerned that the report submitted is not contemporaneous with the injuries, but in any event, it goes no further than saying that the two patients presented with these injuries on [date] July 2014 and does not exceed medical competency in speculating as to their cause. I am prepared to give it the benefit of the doubt. I am being asked to consider that the injuries are consistent with the circumstances [Mr A] describes in his claims. Looking at the evidence broadly, I could say that the injuries might not be inconsistent with assault, but I must make my decision on the evidence in this matter as a whole.
[Mr A] provided photographs of his and his daughter’s injuries post-treatment: disinfected and stitched. On this evidence I can accept that the injuries were sustained and that they happened on [date] July 2014. However, I do not accept on the evidence before me that [Mr A] was ever involved in the [Committee 1] committee, or in rescuing Christians from conversion, [Mr E] or anyone else, forced or otherwise, to Islam, or that he was otherwise prominent or infamous for active support for the church, notwithstanding that he may have given some aid to the poor, helped with building projects and provided the occasional [services]. That means that I consider unreliable some key claims about how and why he and his daughter were injured on [date] July 2014. On the evidence before me, I do not accept that fanatical Muslims vandalised or stole from [Mr A]’s shop on [date] July 2014, or that they injured [Mr A] in the course of doing so. I conclude that the cause of the injuries sustained by [Mr A] and his daughter was some factor other than their being targeted for religious, sectarian or political reasons, or for any other reason potentially relevant to the seeking of protection abroad.
Since I do not accept that [Mr A] was ever involved in any prominent church activities such as the [Committee 1] committee or the rescuing of would-be converts, and since I do not accept that the [date] July attack occurred as claimed, I do not accept that the [date] December 2022 attack occurred either. Because I find [Mr A] an unreliable witness in this matter, I give no weight to the 25 July 2022 letter from his brother-in-law. I also consider it implausible in the claimed circumstances that [Mr A], who asserts that he had to go back to Egypt to be with his wife and children in the wake of the attack, nevertheless stayed his full month’s permitted stay in Australia before returning. In reaching this conclusion, I give no weight to any of the evidence suggesting that [Mr A]’s wife’s brother-in-law convinced him that his family was in good hands: he purportedly had a burnt-out shop and a business to salvage, and yet he continued to holiday in Australia.
[Mr A] gave me vague, confused and ultimately unsatisfactory evidence about how and when he rebuilt the shop. He appeared to evade discussion about insurance and liability matters when he said, again vaguely, that the insurance business in Egypt is not the same as in Australia. I found a number of sites[10] on the Internet that indicate that the insurance business in Egypt operates much like insurance business the world over: competitively, bespoke to needs, according to contracted premiums and subject to “excess,” etc. Fire is an event commonly covered.[11] [Mr A] vague and confused evidence about how he resuscitated his business after the alleged fire on the same site leaves me unsatisfied that it ever happened.
[10]
[11]
[Mr A] did not provide satisfactory explanation as to why he could not move his family away from the site that, he said, had been the focus of so much harm in 2014. I do not accept on the evidence before me that he was too poor to do so or that he was unable to call on sufficient help in doing so.
The situation was then that [Mr A] resided and operated his business out of adjacent addresses in Gizeh for almost two-and-a-half more years. He claims he was trying the whole time to get his otherwise-preoccupied brother in Australia to lodge another family visitor application, for him and his family, and that it is not his fault that the application took so long for the brother to lodge in February 2016. However, that is beside a more important point: he evidently did nothing else to get his family away from the [District 1]-Imbaba area, or from Cairo to another place, such as Alexandria where there are large Coptic neighbourhoods, or from Egypt to some other country closer by. Meanwhile, nothing of any potential significance to this application is purported to have happened to [Mr A] until December 2016, when he was approached with demands to hand over [Mr E] and shown a falsified conversion certificate made out in the name of his daughter. On the evidence before me, I do not believe this encounter ever occurred. I make this finding having already concluded that [Mr A]’s claims about his work with the [Committee 1] committee and the rescuing of converts, like the boy he called [Mr E], are concocted. I also make this finding because I find it implausible on the material before me that any party still so obsessed with retrieving a person like [Mr E] from [Mr A] would have done so little about it throughout all of 2015 and virtually all of 2016.
Speaking of that second family visitor visa application, lodged in February 2016, there is evidence in the primary decision record, submitted by [Mr A] for the purposes of this review, that he had claimed in his visitor visa review hearing in January 2017 that he, his family and his church’s local parish had not experienced any violence in Egypt. When the delegate reminded [Mr A] of what he had evidently said in that 2017 hearing, he evidently replied that he had lied for fear that his telephone was being tapped at the time. Evidently, he did not say what one might reasonably be able to argue in the claimed circumstances: words, say, to the effect he had to say what he had said in order to get away from Egypt to safety. Looking at the evidence as a whole, I consider [Mr A]’s explanation to the delegate for his earlier testimony during the visitor visa review hearing unreliable and quite fanciful.
On the evidence before me, I am not satisfied that [Mr A] or his family have ever suffered serious harm, or even threats of serious harm, for reasons of active support for the local Coptic church and its community, or providing repairs and building services to the church, or involvement on church committees, or helping the poor, or participating in returning converts or would-be coverts to the church, or living and operating a business serving fellow Copts in a location largely populated and/or territorially “claimed” by Muslims, or even merely for being Coptic Christians.
I find that the applicants do not face a real chance of being persecuted in Egypt for reasons of being Christians notwithstanding that occasional, sporadic, isolated incidents of individual and mass violence and vandalism targeting Copts and Coptic communities have occurred from time to time in Egypt. In making this finding, I have had regard to the DFAT reporting cited above.
On the evidence before me, I am not satisfied that any of the applicants faces a real chance of being persecuted in Egypt in the reasonably foreseeable future separately or cumulatively for any of the reasons cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that the applicants are nationals of Egypt, I find that Egypt is the receiving country in this matter.
The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed due to lack of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, their protection claims can no more succeed as complementary protection claims than they have as refugee claims.

100. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Egypt, there is a real risk that the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.
101. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
102. There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).
decision
103. The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
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.
…

[2022] AATA 4394

21 September 2022

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