1905560 (Refugee)

[2024] AATA 4388

1905560 (Refugee) [2024] AATA 4388 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905560

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Melissa McAdam

DATE:28 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named, third named and fourth named applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the second named and fifth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the other applicants.

Statement made on 28 August 2024 at 2:20pm

CATCHWORDS

REFUGEE – Protection Visa – Egypt – religion – Sunni Islam – applicants will be subjected to FGM – members of the Muslim brotherhood – a member of particular social group – girls in Egypt – women – there are not effective protection measures available –  applicant’s fear of persecution is well-founded – membership of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Egypt, applied for the visas on 13 July 2018.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   Protection visa application

9. The applicants are a family. The first named applicant [Mrs A] and second named applicant [Mr B] are married and the other applicants, [Ms C], [Ms D] and [Mr E], are their minor children.  [Mrs A] made the primary claims for protection in the application.  The following is a summary of the claims and information provided in Protection visa application:

   a.[Mrs A] was born in [year]. [Mr B] was born in [year]. [Ms C] was born in [year]. [Ms D] was born in [year]. [Mr E] was born in [year].

   b.The applicants submitted copies of their Egyptian passports.

   c.[Mrs A] was born in [Town 1] in Gharbia province in Egypt. She is of Muslim religion. She has home duties and has not had paid employment. Her parents, two sisters and two brothers are living in Egypt.

   d.The applicants lived in [Town 1] in Egypt.

   e.[Mr B] last came to Australia in July 2017. Each of the other applicants came to Australia in January 2018.

   f.Both [Mrs A]’s family and [Mr B]’s family follow Sunni Islam relatively strictly. [Mrs A] and [Mr B] and some of their siblings have had many problems with their families with respect to the way they should practice Islam.

   g.The most recent and problematic issue was about the circumcision of their daughters, [Ms C] and [Ms D]. [Mrs A] and [Mr B] are totally against this practice. Their respective families are demanding it will happen.

   h.When [Ms C] was [age] years old she was very ill with a fever. [Mrs A] had a Christian friend who suggested that she take her daughter to the church and light a candle and pray to the virgin [Mary]. [Mrs A] used to do this secretly whenever her children were sick.

   i.The applicants lived at [Mr B]’s family’s home.  In early 2017 it was agreed that [Ms C] and [Ms D], and [Ms F] their cousin, would be circumcised together. [Mrs A] fought against this but both her parents and in-laws would not accept this and insisted it be done regardless of her approval. [Ms C] became sick so her circumcision was delayed but [Ms F]'s procedure went ahead. [Ms F] became very ill with infections.

   j.[Mrs A] and [Mr B] tried fighting their families who forced them to sit with a Sheik to convince them their thinking was incorrect.

   k.When all settled with [Ms F] the issue of [Ms C]'s circumcision was raised again. [Ms C] was not sick but [Mrs A] took her to the church to light a candle a few times. [Mrs A] and [Mr B] could not convince their families so [Mrs A] was hoping for divine intervention.

   l.It appeared that [Mrs A] was being monitored after her heated arguments with her family and she was seen exiting the church with [Ms C]. She returned home and immediately sensed something was wrong. Her family were invited to her in-laws and she was asked what she was doing in a church with [Ms C]. Her husband was called at the same time and told that [Mrs A] was a Kafir and going to church to convert their children to Christianity. Understandably her husband was shocked and could not understand what was going on.

   m.[Mrs A] tried to explain that she was praying so that [Ms C] would not be circumcised and put at risk for infection because she was already very prone to high fevers. Interrogations and arguments between [Mrs A], [Mr B], and both families continued for a few days.

   n.[Mrs A]’s in-laws demanded to [Mr B] that [Mrs A] return to her parents’ home and [Ms C] remain with them so that they could raise her till [Mr B] returned to Egypt. In the meantime [Mrs A] was able to explain and convince her husband that she was not doing anything wrong. Finally it was agreed that [Mrs A] remain living with her daughter at the home of her in-laws until her husband returned to Egypt. Her husband tried to buy time and not upset their families until they were able to leave Egypt. [Mrs A] left Egypt with their families believing that she was to visit for 3 months and then return to Egypt with her husband. They had told their families that in early 2018 her husband had a 6 month vacation during which they would all return and the circumcision could be performed at that time when [Ms C]’s father was present.

   o.If [Mrs A] returns to Egypt she will be accused of trying to convert her daughter to Christianity. Her daughters will be taken from her and circumcised.  They will also be taken and raised by their grandparents.

   Departmental Interview, 26 November 2018

10. The following is a summary of the information [Mrs A] and [Mr B] provided in the Department interview:

    a.[Mrs A] has not travelled to any other country. [Mr B] is working in Australia.

    b.[Mrs A]’s family has a traditional view that girls in the family must be circumcised or else they will be dishonoured and sexually active. They believe that this needs to be done for their religious beliefs and to not do so means you are acting against religion.

    c.[Mrs A] is religious but she does not believe Islam says that girls should be circumcised.  All the women in her family including [Mrs A] and her sisters have had the procedure. Their father is very strict and said he wanted to bring them up to be good women. When [Mrs A] and her sisters were in primary school they had to wear the hijab. Their father would not let them have a social life or be any benefit to the country. He just wanted them to be a good wife and mother, just cook and look after the house.  In the family there is a lot of discrimination. The boys are allowed to go out and do what they like but the girls could do nothing and just stay at home. 

    d.[Mrs A] saw her cousin have the procedure and bleed a lot so she was very scared to do have it and ran around the house.  Her family ran after her and made her have the procedure by force. The person who did it was not a doctor or anything, he was the person who cut the sheep. [Mrs A] does not want this to happen to her daughters.

    e.[Mr B]’s family are also in favour of the procedure. [Mr B] is not. They have talked together. When they married they discussed the issue. She was hoping she did not have a daughter because she wants her daughters to be free in society and not have the procedure. When she was pregnant and realised she had a baby girl she told her husband she was terrified for her baby. Her husband told her they live in a free world and nothing would happen to their baby.  [Mrs A]’s family thought it terrible news that [Mrs A] was pregnant with a girl. They think girls are inferior.

    f.When [Mrs A] named their daughter [Ms C] the families got upset because it is a Christian name. They wanted her called [name].  [Mrs A] responded that the name had nothing to do with religion and the name was also in the [Koran]. 

    g.[Mrs A]’s relationship with her in-laws was never that good. Three of her sisters-in-law were married and [Mrs A] was against their marriage because they were still minors, just in their mid-teens.  Her in-laws told her they don’t need her opinion.  At that time [Mrs A]’s cousin’s husband also took a second wife. [Mrs A] was not allowed to talk to her because their in-laws said it was allowed in Sharia.  It is only allowed if the husband is similarly faithful to each wife.

    h.Her in-laws did not accept her mode of dress. They thought she was not respectable They wanted her to wear the gallabiyah and the hijab and face covering.

    i.The delegate put to [Mrs A] that country information indicates that the practice of female circumcision is decreasing in Egypt and that more people are against it particularly educated Egyptians.  [Mrs A] responded that there are a lot of organisations and advertising against the practice including by the first lady Susan Mubarak. This is mainly in the cities but [Mrs A] lives in a village and the practice is still done there. It’s not done by a doctor. It is done by a nurse, midwife or barber. 

    j.After Mubarak, Morsi came as president and he re-did the law about the procedures and accepted them and said to the villages and rural areas to go ahead with the procedure. [Mrs A] was terrified when Morsi came and said they had to re-establish the procedures.

    k.Then came President Sisi and everything changed.  The Salafis and the way of living became very low and all people could think of was to eat and survive. They will think about the procedure again to do with religion afresh.

    l.The delegate put to [Mrs A] that country information indicates that the government has put in place laws against doctors doing the practice. [Mrs A] responded that only one doctor has been arrested and this was when the girl died.  He was arrested for two years.  Also girls are not taken to doctors.  And if a girl dies they will not say it is because of the procedure.  When [Mrs A] was [age] years old one of her friends died and they didn’t say it was from the procedure. So many girls have died but not a word is said about the procedure.

    m.[Mrs A]’s daughter’s cousin had the procedure and got very sick. Luckily [Ms C] was sick so they delayed it for her.

    n.They lived in her in-laws’ house so whatever the elders there said applied.  There were a lot of problems and arguments. They would say to her husband why are you listening to your wife. They threatened they would take [Mrs A]’s children and tried to convince her husband to divorce her. 

    o.Since [Ms C] was [age] years old she was often sick. [Ms C] is on Ventolin. [Mrs A]’s Christian friend would say to take her to church.  [Mrs A] took her to the doctor and to the mosque and eventually decided to take her to the church. [Mrs A] took [Ms C] to the church about five times.  She would go for just five minutes to light a candle with her Christian friend to [Ms C]. She would get permission from the church priest. She just went in and out.  She would do this after she took [Ms C] to the doctor.

    p.Even though [Mrs A] only went in the church for 5 minutes someone saw her.  When she returned home it was like a disaster, it was a mess. They asked her why she went to church and she told them it was just to pray to God. They said she converted and was an unbeliever and was converting [Ms C] to Christianity. She tried to explain but her own uncle said she went to convert, here she is, do what you want with her.  Her brother-in-law said if you don’t stop thinking this they would take her children because she is not good to look after the children.  If they take her children it is easier for [Mrs A] to be killed.

    q.The applicant wants her daughters to live freely.  In Australia her daughter helped someone and the old lady told her daughter she is a beautiful person and she was very happy. The applicant’s daughter was mistreated at school in Egypt. In Australia everyone wants to play with her at school.

    r.When they first came to Australia they would talk to their families and say they were going back to Egypt.  When her husband came here he was very scared of his family and said they would return. When they got the visa they told their families they would come for just a holiday and then return to Egypt.  After three months the families would call and ask why they didn’t come back and bring [Ms C] for the procedure. Her husband hung up and started crying because the families had dishonoured him. After this the families eventually stopped calling, even at Eid they would not greet them.

    s.[Mr B]’s [visa] expired.  They decided not to renew it because they do not want to return to Egypt.  [Ms C] does not want to return, she is terrified.

    t.If they return to Egypt her in-laws will take her children and do the procedure on [Ms C]. It will kill [Mrs A]. Because they did not return on time they think her husband listens to her. They will think she is Kafir.

    u.The applicants can’t move somewhere away from their families because you can’t live without your families in Egypt.  You can’t afford to. It is a totally different culture from Australia.  If they moved to the city none of the families will visit so there will be doubts about them.  If she is there by herself no one will accept renting to a lady by herself. They will think she is not a good person.  In Egypt they look at men and women differently.

    v.[Mrs A] lives with her husband and children in Australia and there is no threat here. There is a style of building and living in Egypt. Even if you get married they preserve the style of life.

    w.[Mrs A] delayed lodging a Protection visa because her solicitor was on holiday [and] had said their application would be lodged in April but the solicitor did not do it until July. All the papers were ready in April.

    x.She can’t complain in Egypt. In Egypt if she goes and complain against her family the police will tell her nothing has happened yet, go away and come and tell us when something happens.

    y.[Mrs A]’s family wanted her to marry when she finished high school. She was lucky that her mother supported her to go to college.

    z.On one occasion [Mrs A] was on a crowded bus in Egypt and a man started touching her inappropriately. She tried to move away but couldn’t. She started screaming and the bus was stopped so she could get away from the man. The other people looked at her as though she was the dirty one. They think if a woman is from a good family she will not get touched.  Violence against women in Egypt is too much, in the house and outside, even at school and work.

    aa.[Ms C] went to kindergarten in Egypt. She was a baby in shorts and singlet and a teacher told her she was not allowed to dress like that. The applicant asked the teacher why she said that and she said they are Muslims and if [Ms C] dresses like that all the other kids will want to dress the same.

    bb.The applicant wants her daughter to grow up a normal person and be free.

    Delegate’s Decision

11. The Delegate accepted that the [Mrs A]’s parents and other extended family members threatened to subject her daughters to FGM against her and their wishes. The Delegate was satisfied that [Mrs A]’s daughters would not face a real chance of being subjected to FGM were [Mrs A] to reside with her children in another part of Egypt, away from their extended family. The Delegate did not accept that the extended family would have the capacity to locate [Mrs A] and her family in another part of Egypt if they did not disclose their location.

12. The Delegate did not accept that [Mrs A] had been attending a church or that she had been threatened or harmed.

    Information to the Tribunal

    Pre-Hearing Submission

13. On 30 July 2024 and 1 August 2024 the applicant submitted the following materials to the Tribunal:

    -Country information regarding female genital mutilation in Egypt.

    -An email from the Volunteer Admin Officer of [a] Church in support of the applicants.

    -A letter from the Pastor of [a] Church in support of [Mrs A].

    -Photographs of [Mrs A] at church.

    -A further written statement from [Mrs A].

    -A written submission by the applicants’ representative.

    -A medical Certificate from [Mrs A]’s doctor confirming she has been circumcised and is worried about her daughters.

    -A Medical Certificate stating that the applicant [Ms C] suffers from asthma.

    -A letter from teaching staff at a [high] school regarding the academic achievements of the applicant [Ms C].

    -A typed letter in the Arabic language.

    -An email from [Mrs A]’s sister stating that she lives in [Country 1] and has chosen not to return to Egypt for many reasons.  She writes about the applicants’ experiences in Egypt and their fears of harm upon return.

1. In the first named applicant’s lengthy written statement she outlines the following:

   …

   Immigration History

   My husband, [had] travelled to Australia in 2007 as a Student. He remained in Australia over the next 10 years on a combination of different [visas].

   [Mr B] attempted to include myself and our children at the time into one of his student visa's but that application was not successful. In late 2017, he applied for me and our children to be included into his [work] visa and we were granted this on 11 December 2017 and we arrived to Australia on [date] January 2018.

   We have not departed Australia since that time and we submitted our application for the present Protection visa on 13 July 2018 (6 years ago). We were invited for an interview with the Department on 26 November 2018 which we attended. At the time, we were unrepresented and there were aspects of my claims which I did not articulate or detail well enough and in some cases I failed to provide certain information which was relevant to my case. I understand that my credibility as an applicant is extremely relevant and introducing new information at this stage may bring into question the genuineness of my claims but at the same time I appreciate and understand that this is a merits review and that it is expected that I provide everything relevant and truthful to the Tribunal.

   The Department made a decision on 3 January 2019 to refuse our application. We submitted an appeal to the Tribunal and we have now been afforded the opportunity to attend our hearing and have a second opportunity to satisfy the Tribunal that we meet the criteria for this visa.

   Background to Claims

   In 2010 I married my husband [Mr B] and as customary tradition dictates, I moved in to his family home.

   [Mr B]'s father passed while he was young and so in the family home was his mother and 3 [brothers]. All three of his brothers were married and had children and so it was quite a busy household.

   His brother's essentially played the role of the father in the household. They dictated the traditions, customs, rules and we were forced to abide by them as most family units would.

   More importantly, not only are all members of his family practising muslims, his brothers and his uncles were all members of the Muslim brotherhood and his cousins work in the [government] ministries. The Muslim brotherhood was recognised in 2011 as a political party and this meant their support and advocacy for the group was solidified. They truly supported the ideology of the brotherhood and acted accordingly.

   [Mr B] was very much opposed to their beliefs but did not make that known to his brothers and family. Instead, he knew removing himself from Egypt and travelling to Australia would his opportunity to detach himself from their radical beliefs and actions. [Mr B]'s relatives engaged in the riots in 2013 after the removal of Mohamed Morsi as President.

   The Muslim brotherhood has forced his family to take very strong opposition to Christians and expect Egypt to be governed under Sharia law while maintaining all of the religious practices. Living in this household was terrifying for me and my children. I would hear them discuss politics, war, racism and other narratives that were pushed by the brotherhood and I could not have disagreed more with them but I knew that any objection I had to their beliefs would cause me and my family serious harm. Without [Mr B] present, I would never dare to express any thoughts on these matters.

   Primary Claim regarding FGM

   In 2017, my husband's sisters [and] sister-in-law, [approached] me, initiating a conversation about female genital mutilation (FGM) for my daughter, [Ms C]. This conversation brought back harrowing memories of my own experience with FGM at the age of [age], as well as the collective pressures and fears faced by women in my family and my husband's family.

   Living with [Mr B]'s family in Egypt was a constant struggle. [Mr B]'s family was deeply conservative. Religious practices were strictly enforced, and the family's mentality was rigid. My sister, [Mr B]'s sister, and I all underwent FGM at young ages. I vividly remember the traumatic experience: my mother and aunt tied my legs and hands, preparing me for the procedure performed by a barber. This event left lasting psychological scars, causing me stress, fear, and nightmares.

   [Mr B]'s family home was a large, multi-generational household. It was a large building with different levels and each family would stay in a different section but we all essentially shared parts of the home and were expected to stay together for the sake of the children. His mother, brothers, and sisters-in-law controlled the house, enforcing strict religious and cultural practices. [Mr B]'s older brother had four daughters, and I witnessed firsthand the severe consequences of their strict upbringing. For example, [the] oldest daughter, had her earring ripped off by her aunt for talking to a boy on the street. She was subsequently married off at the age of [age].

   I felt I had no choice to live out of the house. Obviously there was a lot of political and government issues in Egypt since 2011 that caused violence, riots and prevented people from travelling around the country. For several years nearly all citizens were fearful for their life due to the political issues.

   Despite my personal trauma, discussions about FGM for [Ms C] began in 2017. [Mr B]'s mother, brothers, and sisters-in-law were adamant about continuing this harmful tradition. At the time [Mr B] was in Australia and I believe the family initiated this matter knowing that I would simply concede to it given his absence.

   After almost 7 years of residing with this family and obeying their strict expectations and religious/radical beliefs, this was the first time that their actions were going to cause serious harm to my children and so I spoke up in opposition for the first time.

   The initial discussions were centred around [Ms C] and her cousin [Ms F] (one of the daughters living with us) to be circumcised together.

   I always anticipated that this issue would eventually arise but honestly, the thought that [Mr B] may have been able to secure an Australian visa for our children and I was my hope. Unfortunately, when the issue was finally raised I was still in Egypt without a visa to Australia and I was forced to express my disapproval of the idea.

   I told [Mr B]'s sister and sister-in-law that I do not want [Ms C] to undergo the procedure. I mentioned to them that her health is always a struggle and that she is too young. [Ms C] has always suffered from asthma and related issues. When we were in Egypt, she would fall sick nearly once or twice a month on such a regular basis. There were times we would need to take her to hospitals or doctors quite urgently because she could not breathe properly. The family were well aware of her health issues and they knew we had been struggling with this her entire life. Also, she was barely [age] years old at the time of this discussion. They were initially surprised that I even argued the matter and when they asked me why, I advised them that I thought it was a harmful practice that is illegal in our country. Despite the evidence of the laws surrounding this being known to Egyptians, it is not a law anyone has ever taken seriously and the evidence of the rates of FGM are clear evidence that the law has not stopped the practice.

   Most of the time, we were aware that girls in our family were being circumcised from the age 7 or 8. At the home all of the girls who were there such as [names] and his sisters daughters [had] all undergone the procedure when they were between [age] and [age] years of age. It varies from family to family and place to place but at that time, [Ms F] (who is [age] years older than [Ms C]) was already [age] years of age and they wanted to simply do [Ms C]'s one at the same time even though she was only [age]. The reason why [Mr B] family and our town usually waits until the girl is 7 or 8 instead of performing the procedure when they are infants is they believe that the girl should be physically 'strong' enough to handle the procedure. This still does not make any sense to me but it is the cultural reasoning behind their tradition of practicing FGM when a girl reaches 7 or 8 years of age.

   The conversation eventually was shared with [Mr B]'s brother's who did not even decide to discuss my concerns or understand why I was opposed to the decision. They simply proceeded to make arrangements for the circumcision to take place for [Ms C] and [Ms F] on the same day that they brought up the issue with me. Fortunately for [Ms C], she became ill with a [disease] on the day of the discussion and circumcision and so they went ahead with [Ms F]'s one in our home. They brought a woman who I understand worked as a midwife and she performed the procedure on the 1^st level of the flat at home. As I had feared, [Ms F] developed an infection and they took her to a doctor and it took her almost 3 weeks to recover from this. We suspect that this was because [Ms F] was struggling a lot during the procedure where the women are forced to pin her down from her legs and arms and they could not perform the procedure properly due to [Ms F]'s struggles.

   Because of [Ms F]'s infection and [Ms C]s health, I believe the family was more patient with the decision to do [Ms C]'s procedure. They could see the risk to [Ms F] and [Ms C] was still having a tot of breathing problems as usual and wanted her recovery to finish before they went ahead with [Ms C]. When I would talk to the sister-in-law's at the house about [Ms F] and her condition, I was reminding them that this is one of the reasons why I did not want [Ms C] to undergo FGM and they were not persuaded at all. They acted as if nothing wrong or unusual happened with [Ms F] and that developing an infection was just a normal side effect to the procedure. Even [Ms F]'s medical condition did not deter their motivation to circumcise [Ms C], it just bought me some time while they waited for her to recover.

   [Mr B]'s family then invited a Sheikh to attend our home. The idea was raised by his uncles and he attended our family home in the afternoon for a meeting that lasted around 1 hour. His name was [name] and he was known to our family and myself through the community. I knew the Seikh also supported the Muslim Brotherhood and had a very traditional mentality towards these issues and so it was clear that I would not achieve anything from this meeting.

   [Mr B] joined in the meeting over the phone as he could not return that quickly but he was making arrangements to travel back to Egypt given the incident. During the meeting I was threatened by his family that my failure to comply with their wishes to circumcise [Ms C] would lead to serious problems for me.

   The Sheikh was essentially a spokesperson for [Mr B] family, the Muslim brotherhood and their ideology and practices. When I expressed my views, it was met with some shock from the Sheikh. The only point that we somewhat agreed on was that [Ms C] was too young for the procedure because I stated that she was only [age] years of age and it seemed as though he was surprised to hear that. I said to him she was too young and fragile to go through something like that and he heard from me and the family about her respiratory issues for years that she had been struggling with. I told him that she would often need oxygen masks to breathe and she was very weak on a regular basis.

   The family believed the sheikh could persuade us due to his religious authority. However, [Mr B] and I firmly opposed the idea, expressing our fears and concerns regarding her health and age. The sheikh's presence did little to change the family's stance, and they continued to pressure us. The meeting ended with the Sheikh reminding me and [Mr B] that [Ms C] must be circumcised and that it is not a decision for the parents to make but one that has been dictated by tradition and customs in our country.

   As I stated in my Protection visa application, out of desperation, fear and hopelessness, I visited a church to seek guidance and pray for [Ms C] and our future. When I attended the church to pray, [Mr B]'s family monitored me and his brother came to know that I attended the church. It was the case that his sister lives close to the church (the one that doesn't live in the family home) and she had then shared this to [Mr B]’s brother who drives a [car] and then made sure to drive past the route home from the church where he saw me. The church is a [number] minute walk from our family home called the [a] church and my friend who was a Christian was the one who had previously introduced me to the church. I had taken [Ms C] to the doctor in the morning and then before I went home I decided to go the church. They began labelling me a 'kafir' and accusing me of trying to convert my daughter to Christianity. The children's aunt and grandmother were particularly vocal, leading to days of interrogations and arguments. They accused me of being an infidel and threatened to take my children away and pressured my husband to divorce me. [Mr B] was then forced to immediately travel to Egypt and in May 2017, he returned to what was a chaotic time for everyone.

   Out of respect to [Mr B] and understanding he was due to return, we patiently waited for his arrival before any further steps were taken but it was an extremely sensitive period of time at the home. I was fearful that at any day they would cause physical harm to me, remove my children from me or use their influence to have me arrested, detained or harmed through associates of the Muslim brotherhood.

   In early May 2017, [Mr B] returned and without any time wasted, we all sat down to discuss the recent events. [Mr B]’s brother's were all present and we were expected to meet again with some of his uncles but initially the family in the home talked on the same day [Mr B] returned.

   The family were targeting me severely. They were all talking and shouting over one another about how I vocalised my disapproval over the circumcision and then I went and was caught attending a church. They could not believe my actions. They felt the need to remind me that Muslims don't step foot in churchs and how is this going to reflect on our family. There was so much yelling that the neighbours actually came outside to see what was going on and I took this chance to leave the house so that they would calm down when they noticed people were witnessing this. It also did mean that more people came to know about what I had done and this angered them even further despite it being their fault for being so vocal.

   [Mr B] was already aware of the church incident. He begged me to explain to him over the phone before he returned what I was thinking and he was so frustrated that I was do something so careless and risk being exposes by the locals, neighbours, members of the community or even the family that would have been checking on my movements. It goes to show the influence his family has within Egypt to know something about our movements and whereabouts. I did not know how to justify my decision to [Mr B]. Obviously he has a much more open mind about these matters unlike his family but he knew my decision was putting myself and the children at risk.

   When we met with the family [Mr B] knew he needed to take a very strong stance like his brothers. He shamed me for my decision to take the church and he also presented himself as understanding the reason behind the circumcision. The one thing we had agreed between one another was that he would be able to make arrangements for me and the children to join him on his  [visa]. He has just been granted that visa a couple months prior to his return to Egypt and it was the first meaningful sign of hope for our departure from Egypt given including us on that visa was not like including us on the student visa's he held before. He has already spoken to his company about helping him include me and the children to this visa and they advised him that they could start this process for him when he returns to Australia.

   [Mr B] knew that we could not raise suspicions so we had two goals in our mind:

   Convince the family that [Ms C] is still only [age] years of age and is not strong enough to follow through with the procedure. We wanted to convince them to wait until she turns [age] years of age which would have bought us enough time to depart Egypt for good before her birthday in [month] 2018.

   Once we managed to do this, the next goal was to convince the family that [Mr B] should take me and the children to Australia for a three month holiday. He knew we could never do the entire visa application process, pack our belongings and escape without their knowledge. Therefore, if we managed to convince the family that the circumcision is to be delayed and that we will simply travel for 3 months and return once she is [age] for the procedure, we could escape without any further complications.

   It was not an easy discussion but with [Mr B] by my side, we managed to convince the family of these two matters. Regardless of the agreement, the family were still extremely angry at my decision to go to the church and pray for [Ms C]. They reminded me constantly how that would reflect on our family and it could jeopardize their membership of the Muslim Brotherhood.

   [Mr B] returned to Australia 2 months later and we began the process of our  [visa] application which was eventually granted in December 2017. Those 6 months between [Mr B]'s departure and our arrival to Australia were very difficult but there was hope and that is all I needed. I begged my children not to create any conflict or do anything that could risk our departure and most importantly, I did my best to adhere to their rules and expectations and exceed them in an effort to convince the family I was truly remorseful for my actions.

   I increased my responsibilities to the household, to the children, the brothers and sister-in-laws and [Mr B]’s mother. I wanted to show that I regretted my actions and the only way I could prove this was not by being dismissive, hostile or withdrawn but to play into their mentality and push further towards Islam and the mentality of the Muslim brotherhood. It worked for the months and it meant that despite the initial hostility, as the weeks and months passed, we managed to avoid any further harm or steps being taken to circumcise our daughter.

   I was fearful for the entire time leading up to my departure with the children. Obviously I did everything in my power to not upset the family but it was clear they began treating me very differently. I could not keep the door closed to my unit during the day and people were constantly coming in and out or asking me to stay with the children. The brothers and their wives were extremely cold and distant towards me and I was barely allowed to leave the home unless it was to go somewhere specific or to get treatment for [Ms C] when she would fall ill. It was not an easy time for me and [Mr B]. He was constantly checking in with his family to make sure they were not upset with me over anything and reminded them repeatedly that he was 'fixing' my mentality and that I was changing and would not repeat my behaviour.

   Our Current Situation

   We have seen the number of country reports, articles and documents provided by our lawyer to prove that the practice, whilst outlawed, is still heavily practiced. There is very little record of individuals (parents, medical practitioners or people performing the procedure) being charged or convicted of any offences in contrast to the overwhelming number of incidents that occur every day. It goes to support the fact that the authorities do not involve themselves in such cases (before or after it has happened).

   We know that we also cannot relocate safely within the country regardless of the city or its population. We know that relocation may afford very limited temporary relief from his family but with their influence and the support of the Muslim brotherhood and their resources, coupled with the fact that to establish a Life for ourselves indefinitely, we will need to avail ourself to the government for identity, healthcare, education and employment, it will be a useless exercise to try and find another location to reside as within a short period of time our whereabouts will become known.

   The family will not simply move past our wrongdoings. [Mr B] has essentially now gone directly against his family in the most serious of ways by removing us permanently from Egypt behind their backs. He has cut off contact with his family in Egypt due to the risks he is taking. We know that his actions and ours have permanently offended them to the extent that performing FGM on our daughters is the absolute least of their actions.

   We know the expectations of the immigration department and tribunal are high in this regard and we know that our claims were not accepted by the Department at the first stage. The case officer accepted the risk of our daughters being subjected to the procedure and only justified their decision to refuse our application based on the claim that we would relocate to a major city and we would be unable to be located by [Mr B]s family which is not true.

   If the Department would have approved our application if they simply accepted we could not relocate to another part of the country then we ask the Tribunal to carefully consider the reality of relocating. Yes, we would have issues finding jobs, being isolated and economic issues but honestly, life in Australia is even harder. My husband is working tirelessly every single day to provide for us here. We do not have it easy in Australia and if we manage to survive here, then yes we will likely survive economically in Cairo or Alexandria. It will not be easy but without the threat of harm and FGM being forced onto our daughters, it is realistic. But when you include into the equation the real risk that his family will locate us, and the fact that the Department was willing to accept that FGM is prevalent, common and not stopped by the authorities and the final statement they made which states 'I cannot discount the real chance of her grandparents and other extended family members forcing the procedure upon her daughters' then it is clear that we satisfy the criteria for this visa.

   Living in Cairo and Alexandria as I stated is a temporary solution. We cannot imprison ourselves in a home and deprive our daughters of education and healthcare. We cannot live without registering our residence, personal details many different government agencies and private institutions. It is completely real and possible that with a small amount of time and resources, which [Mr B]s family has access to, that we will be located.

   The main risk to our whereabouts becoming known is [Mr B]s family still has certain positions in the government and police. It is not possible to live a life in Egypt without needing to register our location, our childrens schools and accessing a tot of government services. Our address will be registered through a lease, our identity card and [Mr B]s drivers licence will need to be registered with our address. when we go to hospitals and get treatment for [Ms C] our details will be registered. When [Mr B] starts working and paying tax, his employment will be recorded. There is too many examples where we will leave a footprint within the different government ministries and his family can very easily access this information given their roles in different local and national government departments and police forces. It is extremely easy for his family to find our location and take drastic steps to confront us over our actions over these years.

   …

   Tribunal Hearing

1. [Mrs A] and [Mr B] appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

2. The following is a summary of the information provided by the first named applicant, [Mrs A], at the hearing:

   a.She lives with her husband and four children in Sydney.  They live as a family.  Her husband is financially responsible for them. He works hard from 5am to 5pm as a [occupation].  She also works on the weekend as a [occupation].

   b.She and her husband are Muslim.  Their children were born Muslim but they are yet to decide upon religion themselves.

   c.[Mrs A] is not involved with a Muslim community in Sydney.  She does not have much involvement with an Egyptian community in Sydney but does sometimes.  She is too busy and has no time. Also she does not think she would be comfortable in a community. She might be scared they will know her or [Mr B]’s family and would tell the families about the applicants. She also likes to spend her time on beneficial activities not just talking with others.

   d.Sometimes she helps a local Baptist church with their community activities. She volunteers sometimes when they distribute food. They are really good to her and make her feel like they really care about her. Sometimes the Pastor [sits] with her and her children and tells them stories, like the story about the prodigal son.

   e.[Mrs A]’s mother, two brothers and a sister live in Egypt.  Her other sister [Ms G]lives and works overseas. She is sometimes in [a country] and sometimes in [Country 1].  [Ms G] is a [occupation]. She has no children as she is not married. She is younger than [Mrs A], who is the oldest of the siblings. [Mrs A]’s mother and two brothers live together in El Minya. Her other sister, [is] married and lives with her husband in [Town 1]. [She] has one boy. She only recently married.

   f.[Mrs A] does not have much contact with her family in Egypt. She is in frequent contact with [Ms G].  Her family in Egypt know of her problem but not in much detail.  [Ms G] knows the most as she is closest to [Mrs A].

   g.Because [Mrs A] was not living with her family in Egypt they did not really get involved much. If they did that would increase the problem.  They are the same as her husband’s family, although her husband’s family are more strict. Her sisters are also circumcised too. [Mrs A] and [Ms G] were circumcised on the same day.

   h.She completed a [qualification] in Egypt.  She loved it and wanted a career in this area. She [did some work] at her family home in Egypt while she was studying.  She did not work after she graduated because she married and moved into her husband’s family home.  They did not like the idea of her [working] at their home.  They want a wife/woman to be a stay-at-home mother. If she returns to Egypt she will not be able to work [because] her husband’s family’s mentality has not changed.

   i.Her husband supports her working. He stays home and takes care of the children on the days she goes to work here.  He prepares the meals too and does the housework.

   j.The Tribunal asked the applicant if her sister [Ms G] had any difficulties obtaining her qualifications in Egypt.  [Mrs A] responded that at the time their father did not approve and was totally against [Ms G]’s chosen field of study.  He preferred her to study to be a doctor or teacher because in his thinking she will eventually marry and [a field of study] would be in contradiction to her role as a wife.

   k.[Ms G] worked for about a year in Egypt but it was so difficult for her.  There were not many female [occupations] and she had difficulty at home because they were pressuring her to get married.  At her work place in Egypt she was in a male dominated field so it was difficult.  Her male colleagues would bully her, give her extra work, and put obstacles in front of her success. It was difficult for them to see her succeed over them. Even her manager would talk to her in a bad way. She was also under pressure at home to marry because she was getting older. When she would go home they would pressure her with a suitor they had found. She did not like that. So [Ms G] applied to work outside of Egypt.

   l.It would be difficult for her daughters to have a career of their choice in Egypt. Her husband’s family are very strict religiously and the most important thing for them is for the female to be a good person, listen to instructions and get married. Almost all the females in her husband’s family were married at age of [age] or [age] when they were still underage.

   m.Some of her relatives work in government Ministry positions and with the police.  Her Dad’s cousin is a [position] in the police.

   n.Her husband’s family continued to support the Muslim Brotherhood even after it was banned.  After the coup about 51% of population voted for Morsi.  After Sisi came to power the Muslim Brotherhood did not vanish, they are still there. Many were killed or put in jail but they have regathered.

   o.Her husband’s family will try to find the applicants to harm them if the applicants move to another part of Egypt.  The applicants have provoked them by coming to Australia and not returning. They had no idea the applicants would not go back. She and her husband are supposed to be ‘yes, yes we will do, no problem, we agree’. [Mr B] was the example of the good son.  But now he is perceived as the one who took the side of his wife and children and went against them. In Egypt when there was something he wanted to do and it was not according to their wishes they would make him do what they wanted. He could not object or say no. According to their customs and Shariah they will circumcise the girls.

   p.Her husband’s family still consider the applicants part of their family. By coming to Australia the applicants are perceived to have mocked them. Because of their strict ideology they will never leave the applicants alone. If the applicants try to live in Cairo or Alexandria her husband’s family will find them, harm them and circumcise the girls.

   q.The applicants have been left alone in Australia only because it is far, far away and it is multicultural here and there in no problem. In Egypt it is different.  Alexandria and Cairo are just 3 or 4 hours from her village.  Alexandria and Cairo are where people go for work. She and her husband have relatives in these cities. Her maternal cousin and aunt and mother-in-law’s sister are in Alexandria and Cairo. Some of the members of her husband’s family members work as [occupations]. Some of them also work as [occupation]. They will eventually find the applicants.  

   r.When she goes to church she feels safe. To her understanding going to a church does not mean she has changed her religion, but the families in Egypt won’t understand.

   s.[Ms C] recently asked her why in Egypt she had always been silent, sad and depressed. [Ms C] says she knows now the reason why. [Mrs A] would have to be accompanied by her mother-in-law or sister-in-law when she went out as they were scared she would change her religion or that of the children. They would all have to gather at her mother-in-law’s place downstairs. [Ms C] heard some of the conversations between them.  [Ms C] has had a recurring dream from [age] years old that someone was taking her from a room and putting her in another room with other children. This is because of the conversations she overheard.

   t.Her daughter [Ms D] sings in a group and dances so of course her husband’s family would not approve of such stuff. [Ms D] lives in freedom which they won’t accept at all.  [Ms D] has been here since the age of [age] and thinks of herself as Australian. She supports the Australian athletes in the Olympics.

   u.[Mrs A] is worried for the whole family.  The children have been educated in Australia. She is worried her son [Mr E] and the other children will be taken away from her. They will educate [Mr E] in the way of the Muslim Brotherhood.

   v.She is worried her husband’s family will harm her husband physically.

   w.She fears physical harm and more psychological harm from her husband’s family if she returns to Egypt.  They will threaten to kill her because she went to a church and she doesn’t want circumcision for her daughters, and because she made their son go against their orders.  They can find someone to do harm to her.

   x.She once witnessed her husband’s brother, [beat] his wife almost to death.  This was because [the] wife went out without his permission and raised her voice at him.  She was in her [age] at the time. 

   y.When the problem happened, many people in the community became aware of it.  That would be difficult for her husband’s family. If the applicants go back her husband’s family will know that others know about what happened and they would be expected to take a real step.  If they don’t it is their reputation in the community which is broken.

3. The following is a summary of the information provided by the second named applicant, [Mr B], at the hearing:

   a.All of his family support the Muslim Brotherhood. He remembers this from the time he was about [age] years old. They started to talk about the things the Muslim Brotherhood do and Hassan al-Banna. They want the country to be better and talked about what is the right way for Islam. They attended a lot of gatherings in known places and some unknown. [Mr B] would have to go with them as a teenager. The Tribunal asked [Mr B] to describe one of the occasions. He responded that at the gathering there was talk about the way to be with the Muslim Brotherhood and to be unknown in the community. They were scared of the government at the time. They talked about religion and politics. [Mr B] was only a listener. It was at the house of one of the members. The house owner was considered the chief of the area.

   b.[Mr B]’s brothers [are] followers of the Muslim Brotherhood.

   c.[Mr B] did not like the Muslim Brotherhood. He was never ‘involved’ with them, but he did not stop going with his family. He could not do that.  His family knew he did not like the Muslim Brotherhood because he always objected to them. His eldest brother [tried] to give [Mr B] advice about the Muslim Brotherhood.  Once he hit [Mr B] when he was about [age].  [he ]was talking to [Mr B], wanting him to understand and [Mr B] said ‘I don’t want to understand’. He tried to get out of the room.  [He] started hitting him on the head and body. He forced [Mr B] onto the floor. Their mother and a neighbour came and stood between them to stop it. At that time [Mr B] left home and went to stay with his mother’s relatives for three days.

   d.[Mr B]’s [relatives work in various government agencies].

   e.The Tribunal asked [Mr B] why he thought his family would pursue the applicants if they tried to live in another part of Egypt.  He responded that is their custom and tradition. They don’t want anyone going against them. They always fight and hit each other.  One of the family once hit another on the head with an axe. This was [the cousin]’s family. Their interactions are violent. As soon as they hear someone object or say no they immediately start hitting.

   f.His brother  [hits] a lot. [He] always causes problems. [He] hit his wife more than once. If [he] wants her to do something and she would say it is not possible he does not accept it. How dare anyone say no to him. He is controlling her so she can’t go anywhere.

   g.Now that [Mr B] has objected to what his family wanted and has lied to them they talk to [Mr B] about separating from his wife. He has refused to do so.  This could be reason for them to hit or kill him.  They feel his religious beliefs are different from what they believe.  [Mr B] just wants to live his life freely.

   h.After his wife left Egypt they contacted him to try to make him go back again, but he said no.  They told him to come back and said they would not do anything to him but he knows they are lying.

   Post-Hearing Submission

4. On 7 August 2024 the applicants’ Representative wrote to the Tribunal with the following clarification in relation to the applicants’ relatives who are government employees:

   -[details deleted].

   Country Information

5. DFAT’s most recent ‘Country Information Report’ on Egypt, published in June 2019, contains the following:

   Female genital mutilation/cutting (FGM/C) is a strongly held traditional practice in Egypt. It is widely practiced in both Muslim and Christian communities, and strong social pressure is placed on young women and girls to undergo the procedure in order to get married. FGM/C has been illegal in Egypt since 2008 (Article 242 of the Criminal Code), although the law does not explicitly set out punishments for aiding or abetting the practice, nor addresses failure to report FGM/C, whether it is planned or has taken place. Egypt’s highest Muslim religious authorities have repeatedly declared that FGM/C has no basis in Islam. A comprehensive 2013 study by the United Nations International Children’s Emergency Fund (UNICEF) found that over 90 per cent of Egyptian women had been subjected to FGM/C, which had been conducted by a medical professional in around three-quarters of cases. In February 2016, UNICEF reported a noticeable reduction in the percentage of girls aged 15 – 19 years who had undergone the procedure, which may indicate that the practice is on the decline.

   Despite the high rate of medicalised FGM/C in Egypt, no laws explicitly address medical malpractice and the performance of FGM/C by health professionals, whether in government or private hospitals, clinics or private homes. Prosecutions are rare and have generally been limited to cases where girls die during or after the procedure.  
   …

   Police

   …  Professionalism varies across the police. The effectiveness of the police in general is limited by a shortage of equipment, a lack of training, low pay, and poor investigative skills, particularly in relation to investigating cases of sexual assault. In May 2015, the Ministry of Interior commenced a new policing strategy aimed at improving responses to violence against women, including through human rights training and the deployment of more female physicians to hospitals. Human rights groups report, however, that many women will not report crimes due to a lack of trust in the police.

   The police do not enjoy the same high public esteem as the Egyptian military. The police’s ability to deal with evidence is widely mistrusted, particularly in relation to politically sensitive cases. Police mistreatment and impunity was a particular focus of protesters in the January 2011 revolution. Calls for investigations into incidents of police brutality remain common. The Ministry of Interior announced in February 2017 the formation of committees to evaluate police officers on ethics, behaviour, and psychological condition; while in March 2017 it signed a joint protocol with the NCHR to train 300 police officers on human rights.

   There have been cases of police officers being successfully prosecuted for sexually assaulting or fatally beating detainees. In October 2017, the Court of Cassation confirmed prison sentences for six officers found guilty of beating a detainee to death in a Luxor police station. Human rights observers report, however, that impunity for the police (and other security forces) remains a significant ongoing issue. Authorities do not investigate all complaints of police abuse, and many prosecutions have resulted in acquittals due to insufficient or contradictory evidence.

6. The 2023 USDOS Country Reports on Human Rights Practices: Egypt states:

   Female Genital Mutilation/Cutting (FGM/C): FGM/C was illegal but was a serious problem, since incidents were not consistently reported and the law was not always enforced. According to the Central Agency for Public Mobilization and Statistics, the most recent data showed a drop in the rate of FGM/C among girls and young women ages 0-19 from 21 percent to 14 percent between 2014 and 2021. The overall rate for women of all ages dropped from 92 percent to 86 percent.

   According to international and local observers, the government took steps to enforce the FGM/C law, including maintaining hotlines to inform authorities of doctors who performed the operations. In February, the Ministry of Social Solidarity launched a public awareness campaign entitled “FGM is a crime” targeting areas where the practice was prevalent.

   In January, the National Committee for the Elimination of Female Genital Mutilation announced it thwarted an attempt to commit the crime of female genital mutilation on a girl, age 11, in Cairo and reported blocking additional attempts of commit FGM/C in various governorates throughout the year.

7. The UNFPA website contains the following in relation to Egypt:

   Female genital mutilation (FGM) is still widespread – but increasingly condemned – throughout much of North and East Africa. However, the recent history of the practice in Egypt presents special challenges for those trying to end it. According to the Egyptian Family Health Survey (EFHS) 2021, 86 percent of Egyptian married women between the ages of 15 and 49 have undergone FGM, 74 percent of whom by doctors. Although a positive change in women’s attitudes about circumcision has occurred, there is still widespread support for the continuation of FGM in Egypt. The percentage of mothers who intend to circumcise their daughters in the future has declined to only 13% (EFHS 2021) compared to about 35% (DHS 2014). FGM is part of the social fabric of the Egyptian community and is in some cases upheld by beliefs associated with religion. 

   In June of 2008, the Egyptian Parliament agreed to criminalize FGM/C in the Penal Code, establishing a minimum custodial sentence of three months and a maximum of two years, or an alternative minimum penalty of 1,000 Egyptian pounds (LE) and a maximum of 5,000 LE. As of yet no one has been convicted according to this law.

   Also, the new Child Law included the formation of Child Protection Committees (CPC) at different national levels with duties to identify, support and monitor children at risk of neglect and abuse, including girls at risk of circumcision.

   Furthermore, to assist in the enforcement of legislation, Egypt hosted in 2008 a regional meeting entitled 'Cairo Declaration+5'. This conference is a follow-up to the 2003 meeting that also took place in Cairo and resulted in an important legal document on FGM titled 'The Cairo Declaration for the Elimination of Female Genital Mutilation'. The main objectives of the conference were to follow up on the recommendations of the pervious conference and to launch an international campaign aimed at rekindling world-wide attention on FGM.

   The Egyptian Ministry of Health (MoH) issued in 2007 a ministerial decree (271) closing a loophole in the previous 1996 decree by banning everyone, including health professionals, from performing FGM in governmental or non-governmental hospitals/clinics.

   In 2007, Grand Mufti Ali Gomaa’s issued a 'Fatwa' condemning FGM and the Azhar Supreme Council for Islamic Research issued a statement explaining that FGM has no basis in the core Islamic Sharia or any of its partial provisions.

   In September 2012, Egyptian gynecologists and obstetricians union launched a statement declaring that FGM is not a medical procedure and is not included in any medical curriculum else as a practice that should be prevented consequently law doesn’t offer protection to physicians who practice it.

   In 2021, Egypt’s parliament approved amendments, increasing the maximum and minimum prison sentences imposed on FGM crimes. The amendments also stipulated that medical professionals (i.e., doctors and nurses) who perform genital mutilation can face between ten and 15 years in prison.[1]

   [1]  UNFPA Egypt | Female genital mutilation, type="1">

   The media organisation, Deutsche Welle, reported the following in 2022:

   Despite Egypt outlawing female genital mutilation and introducing punishments, a new study has found that the country is nowhere close to achieving its aim of ending FGM by 2030. … A new study by the Cairo-based Tadwein Center for Gender Studies has found that that 86% of underprivileged women aged 18 to 35 in Egypt, a country of more than 102 million people, have been subject to female genital mutilation (FGM), also called female genital cutting (FGC).  That is only down one percentage point from the FGM figures in Egypt's last National Health Survey, in 2014.

   … The practice is still rife despite Egypt's outlawing FGM in 2008, increasing jail sentences for practitioners and family members involved, and setting up the National Committee for the Eradication of FGM in 2019.

   … Though the prevalence of FGM in certain populations in Egypt has hardly changed since 2014, the researchers told DW that there have been other shifts.  "Two things have changed for the better since 2014," said Amel Fahmy, director of the Tadwein Center and co-author of the study. "Only 38.5% of women and 58% of men support the continuation of FGM."  That marks a significant drop in favorable views among women in particular. Previously support for FGM had been about 50% for women. "The second change is that daughters of circumcised women continue to be less likely to be circumcised, at around 57.4%," Fahmy said.

   … Typically the removal of all or part of the external genitalia is carried out on girls aged between 9 and 13, but there are victims as young as 6, campaigners against FGM say. The practice is often carried out in the name of promoting chastity and upholding tradition. Some see it as a religious duty. However, the most popular is a "medical" reason.

   … [Mona] Eltahawy said she remembered more than one conversation with "women who themselves were subject to FGM, who have sworn to me that they will cut their daughters despite whatever law is in place."  This is partially motivated by perceived duties of love and care, Eltahawy said: "They do it to their daughters and their granddaughters because they love them, because they don't want them to be rejected or ostracized - they want them to survive."

   Eltahawy said another reason for the prevalence is that "FGM is part of a systemic patriarchy and systemic misogyny as it is interwoven with the obsession of keeping a girl's virginity until they get married."  For that reason, Eltahawy said, it is not simply up to individual mothers to pledge not to permit their daughters to be subjected to FGM.  Thirty percent of respondents to the Tadwein study said they would not allow a son or hypothetical son to marry a non-circumcised woman.[2]

   [2] Holleis, J, Deutsche Welle, 2022, “Egypt struggles with female genital mutilation”, 3 August.

   A 2019 article notes:

   ‘Despite being made illegal, FGM is still commonplace, with most cutting operations performed by doctors who should know better.  Despite a century of efforts to end the practice, female genital mutilation (FGM) is still highly prevalent in Egypt. 

   The National Population Council, housed by the Ministry of Health and Population, was put in charge of Egypt’s 2015-2020 FGM abandonment national strategy, entirely funded by foreign donors from the European Union.  But in 2017, one European donor froze its funding, saying the NPC was incompetent.  The European Union and UNDP also subsequently interrupted their financial participating following what they described as a “lot of internal issues and difficulties” at NPC.

   The former National Population Council team “didn’t implement any real actions in the field but spent a lot of money on showy conferences and consultancies” said Randa Rakhr al Din, head of Kamila, a coalition of 120 local organisations against FGM.[3]

   [3] Ariane Lavrilleux, ‘Why is Egypt still performing so many female genital mutilations?, 8 March 2019 OF CLAIMS AND EVIDENCE

   The applicants submitted their Egyptian passports. On the basis of these documents and the applicants’ oral evidence the Tribunal is satisfied they are citizens of Egypt. The Tribunal assesses their claims against Egypt as their country of nationality and receiving country.

   The applicant parents claim to fear serious harm on behalf of the applicant daughters because they will be subjected to forced circumcision in Egypt.  

   Credibility

   The applicants presented their claims in a highly detailed and personalised manner.  They were able to persuasively describe their extended families’ traditional and conservative views regarding female circumcision. They also gave quite particularised and often spontaneous accounts of the actions family members took to subject girls in the families to FGM.

   The Tribunal found [Mrs A] and [Mr B] to be credible witnesses who provided consistent and reliable evidence regarding their experiences in Egypt and their fears for their daughters. 

   The Tribunal accepts that [Mrs A] was subjected to FGM as a girl in Egypt.  The Tribunal accepts that her family and [Mr B]’s family in Egypt view FGM as a culturally required practice and that they continue to subject the female children in the families to FGM.

   The applicants’ claims are also supported by the available country information regarding the prevalence of the practice of FGM in Egypt, especially in rural regions such as the applicants’ home area.

   The Tribunal accepts that the applicants’ extended families in Egypt wish to subject [Ms C] and [Ms D] to FGM on return to Egypt.

   Both [Mr B] and Mrs [A] presented detailed evidence about the highly conservative and patriarchal nature of their families in Egypt, including [Mr B]’s family’s support for and participation with the Muslim Brotherhood.

   [Mr B] appeared visibly emotionally distressed when recounting the time his brother beat him for expressing opposition to the Muslim Brotherhood, as well as when describing his [brother’s] violent and controlling treatment of his wife.  The Tribunal accepts his and [Mrs A]’s evidence that his family members were violent and did at times respond to intra-family disagreement with violence. The Tribunal accepts that [Mr B]’s family were both controlling and critical of [Mrs A] and restricted her activities within the household.

   The Tribunal also accepts that [Mrs A] made several brief visits to a Christian church in Egypt to light a candle for her daughter [Ms C].  The Tribunal accepts that she also performs volunteer community work with a Christian church organisation in Sydney because she enjoys doing so, not because she is interested in changing her Islam religion.

   Fear of Harm in Egypt

   [Ms C] and [Ms D] - the third named applicant and the fourth named applicant

   If the applicants return to Egypt the Tribunal is satisfied that [Mr B]’s family will insist on [Ms C] and [Ms D] being subjected to FGM.  Within the applicants’ village area they will be able to force this to happen even if [Mrs A] and [Mr B] do not give their consent to the procedures. The Tribunal considers it likely that [Mr B]’s family can and will subject [Ms C] and [Ms D] to FGM given the level of control they have within the family; their use of physical violence at times; the lack of opposition from [Mrs A]’s family; their increased hostility towards the applicants given their protracted stay in Australia; and the broad community acceptance of such procedures.

   The Tribunal is therefore satisfied there is a real chance that [Ms C] and [Ms D] will be subjected to FGM by [Mr B]’s family on return to their village in Egypt.

   [Mrs A] and [Mr B] both gave evidence which the Tribunal accepts that wherever they go in Egypt they can be readily located by [Mr B]’s family.  The applicants will need to register their presence in a new locale in order to obtain government services and progress the children’s education.  It will therefore be possible for [Mr B]’s family members who are government employees to discover where the applicants are living.  Further, given the interconnectedness of Egyptian society and the engrained family community culture, it is likely that people connected to [Mr B]’s family will become aware of their presence in a new locale and inform [Mr B]’s family.

   The Tribunal is therefore satisfied that [Mr B]’s family will be able to locate the applicants if they try to live in another part of Egypt.  Based upon the evidence of the level of control they exerted over the applicants in the past and their strict adherence to traditional practices and concepts of family honour, the Tribunal is satisfied there is a real chance [Mr B]’s family will go to wherever the applicants may be living in Egypt and forcibly subject [Ms C] and [Ms D] to FGM.

   The Tribunal is therefore satisfied that the real chance [Ms C] and [Ms D] will be subjected to FGM extends to all areas of Egypt.

   According to the World Health Organisation (WHO):

   Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. The practice has no health benefits for girls and women and cause severe bleeding and problems urinating, and later cysts, infections, as well as complications in childbirth and increased risk of newborn deaths.

   The practice of FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes and constitutes an extreme form of discrimination against girls and women. It is nearly always carried out by traditional practitioners on minors and is a violation of the rights of children. The practice also violates a person's rights to health, security and physical integrity; the right to be free from torture and cruel, inhuman or degrading treatment; and the right to life, in instances when the procedure results in death.[4]

   [4] Female genital mutilation (who.int), >

   The Tribunal considers that FGM is serious harm and that it will be done to [Ms C] and [Ms D] for the significant and essential reason of their membership of a particular social group, namely girls in Egypt. The Tribunal is satisfied that the harm involves systematic and discriminatory conduct as it will be done to the girls intentionally and selectively.

   The Tribunal notes that the government has introduced legislation and measures to combat FGM within Egypt and that the highest Islamic religious authority has issued a fatwa against the procedure. Despite this the practice continues to be widespread and to occur at a substantial rate.   While the state at the higher levels appears to be willing to provide protection against FGM the Tribunal is not satisfied that it is able to effectively protect girls from FGM in Egypt. 

   Based on the above the Tribunal is satisfied that [Ms C] and [Ms D] have a well-founded fear of persecution in Egypt for reason of their membership of a particular social group.

   [Mrs A] - The first named applicant

   [Mrs A] gave evidence which the Tribunal has accepted that her life was tightly controlled by her in-laws in Egypt. After marriage she and her husband lived in her in-laws’ building as is customary.  She was prevented from pursuing her [career] and her movements and other activities were monitored and restricted. [Mrs A]’s occasional brief attendance at a Christian church was viewed with suspicion and opposition.

   The Tribunal considers there is a real chance that if [Mrs A] returns to Egypt she will again be required to live with her in-laws and she will again be controlled and restricted by them. As a woman and a wife she will be expected to obey both her husband and his family and abide by their wishes.  [Mr B]’s family will also have increased suspicion and antagonism towards [Mrs A] given her perceived defiance in remaining in Australia and turning her husband against them.  She is therefore likely to be largely isolated within the household.  She will not be able to pursue employment or have freedom of movement and social activity.  The Tribunal considers this amounts to serious harm to [Mrs A] of a highly gendered nature. The Tribunal is satisfied that the essential and significant reason for the harm is [Mrs A]’s membership of a particular social group, namely women. The Tribunal is satisfied that the harm involves systematic and discriminatory conduct in that it will be done to [Mrs A] intentionally and selectively.

   It is possible [Mrs A] could try to live elsewhere in Egypt, either with her husband and children or without them. However her presence in another place can readily become known to [Mr B]’s family through their government work and their connections and through the broad community interest in new arrivals to an area.

   Given [Mr B]’s family’s deeply held traditional beliefs, their need to control members of their family, and their heightened perceptions about family honour the Tribunal considers there is a real chance that they would locate [Mrs A] to return her to their household.  The Tribunal is therefore satisfied that the real chance of serious harm to [Mrs A] extends to all areas of Egypt.

   The available country information shows that police have limited effectiveness and are not widely trusted in Egypt.  The Tribunal is therefore not satisfied there is effective protection available to [Mrs A] in Egypt.

   Based on the above the Tribunal is satisfied that [Mrs A] has a well-founded fear of persecution in Egypt for reason of her membership of a particular social group.

   [Mr B] and [Mr E] – the second named applicant and the fifth named applicant

   Only indirect and vague claims have been briefly raised on behalf of [Mr B] and [Mr E].  Very little detail has been provided in relation to them.   

   The Tribunal finds that [Mr B] and [Mr E] are members of the same family unit as the first named, third named, and fourth named applicants for the purpose of s.36(2)(b)(i) of the Act. In view of this finding the Tribunal does not consider it necessary to determine the claims on behalf of [Mr B] and [Mr E].

   Section 36(3)

   Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) exclusion will not apply.  The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country or has a well-founded fear of refoulement from that country to a place where they face such treatment.

   There is no evidence before the Tribunal that the applicants have a right to enter and reside in any third country. On the information before it the Tribunal is satisfied that they do not have such a right and that they are not excluded from Australia’s protection obligations by s 36(3).

   Conclusion

   The Tribunal has found that the first named applicant [Mrs A], the third named applicant [Ms C], and the fourth named applicant [Ms D], each have a well-founded fear of persecution for reason of their membership of a particular social group. Therefore, they are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s.36(2)(a) of the Act.

   The Tribunal is satisfied that the second named applicant [Mr B] is the first named applicant’s husband and the parent of the third named and fourth named applicants. The Tribunal is satisfied that the fifth named applicant [Mr E] is the minor child of the first named applicant and the brother of the third named and fourth named applicants. The Tribunal is therefore satisfied that the second named applicant and the fifth named applicant are members of the same family unit as the first, third and fourth named applicants for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of their applications depends on the outcome of the other applicants’ applications. It follows that they will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

   The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named, third named and fourth named applicants satisfy s 36(2)(a) of the Migration Act; and

   (ii) that the second named and fifth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the other applicants.

   Melissa McAdam
   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.

   …