1934936 (Refugee)
[2025] ARTA 1453
•19 March 2025
1934936 (Refugee) [2025] ARTA 1453 (19 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1934936
Tribunal:General Member S Manera
Date:19 March 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 19 March 2025 at 1:10pm
CATCHWORDS
REFUGEE – Protection Visa – Egypt – religion – Coptic Christian – assisted a Muslim to convert to Christianity – imputed to be proselytiser – well-founded fear of persecution – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 29 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a [age]-year-old man and who claims to be a national of Egypt, applied for the visa on 17 January 2019.
BACKGROUND
Evidence before the Department
The applicant provided the following documents to the Department in support of his application for protection:
·evidence of his identity including, but not limited to, copies of his current and former passports;
·statutory declaration by the applicant dated 17 January 2019 (first statutory declaration);
·letter from Father [name] of [a] Church in Sydney dated 27 January 2019, stating that he was aware of the applicant’s problems in Egypt from the applicant and from [Father A];
·clinical report from [named doctor], mental health specialist/senior social worker dated 27 May 2019;
·letter in Arabic with English translation (described as a ‘Certificate’) by [Father A] dated 4 January 2019 stating that the applicant had a pivotal role in the conversion of [Mr C] to Christianity;
·medical report from [a] Hospital in [Town 1], in Arabic with English translation, dated 13 September 2018, stating that the applicant has a fracture to the radius bone of his right arm; and
·letter in Arabic with English translation from [Organisation 1] dated 4 January 2019 stating that the applicant’s mother is an active member of the association’s board of directors.
In his first statutory declaration, the applicant claimed as follows:
·he was raised a Christian and learned about the Coptic faith from [Father A]. He assisted [Father A] with duties for the Coptic Church;
·the applicant would go to poor rural areas to talk about Christianity;
·the applicant was involved in the protests of Maspero on 9 October 2011, in which a number of Coptic Christians were killed. The applicant managed to flee the area and returned safely home. [Father A] was arrested, interrogated and released;
·the applicant followed news of persecution of Christians in the media;
·the applicant knew a Muslim man named [Mr C] who had been living in the same building as the applicant for approximately 25 years. [Mr C] was from a strict Salafist family, but he resided alone in Cairo. The rest of his family resided in Fayoum;
·the applicant’s mother was a board member of [Organisation 1] and the applicant played a role in the association’s community service activities, where he would spread the Christian religion;
·the applicant and his family got to know [Mr C] and included him in family occasions. The applicant maintained contact with [Mr C] even after he had married and left his parents’ home;
·on 15 June 2018 the applicant received a phone call from [Mr C]. The applicant met with [Mr C] that day, and [Mr C] said that he wanted to know more about Christ and Christianity. The applicant spoke with [Mr C] about Christianity. He gave a bible to [Mr C];
·three days later, the applicant received a phone call from [Mr C] who said that he had read the bible and wanted to discuss further. When the applicant and [Mr C] met later that day, [Mr C] said that he wanted to come to church with him. On 24 June 2018 the applicant and [Mr C] attended the church [in] [Town 1];
·the applicant gave [Mr C] some books about Coptic [Christian]. On 29 June 2018 they met at a place [and] attended a mass there. [Mr C] continued to ask the applicant about Christianity, and asked the applicant whether he could become a Christian. The applicant said that [Mr C] would need to speak with a priest;
·the applicant telephoned [Father A] and told him about [Mr C]’s interest in Christianity. The applicant, [Mr C] and [Father A] met [on] 7 July 2018. After [Father A] spoke with [Mr C] for about 4 hours, [Father A] said that [Mr C] would be baptised on Sunday, 16 July 2018;
·on Sunday, 16 July 2018 the applicant and [Mr C] returned to the Monastery, where [Mr C] was baptised. [Mr C] remained at the Monastery for a week and the applicant returned to Cairo;
·when [Mr C] returned to Cairo, he stopped attending work and the mosque. He was questioned about his absence. The applicant suggested to [Mr C] that he change address, and tell people that he had changed jobs and was attending a different mosque. [Mr C] moved to [a] City, near the applicant’s home. [Mr C] attended church with the applicant at [a church];
·[Mr C]’s family contacted him frequently to ask about his new place of residence and new work. [Mr C]’s older brother, [Mr D], started to appear in Cairo, looking for [Mr C]. He seemed to know that [Mr C] was spending time with the applicant. [Mr D] met with [Mr C] in [District 1] and asked about the changes that had occurred in his life recently. [Mr C] told the applicant and [Father A] about his meeting with [Mr D]. The applicant told [Mr C] not to return to his previous address and not to answer calls from unknown numbers;
·the applicant and [Mr C] later found out that [Mr D] did not return to Fayoum, but that he was following and monitoring [Mr C] and found out about [Mr C]’s church attendance. [Mr D] also found out that the applicant was the reason for everything that had happened to [Mr C];
·On 28 August 2018 the applicant was attacked by [Mr D] in the morning on his way to the garage. A man started punching and kicking the applicant and he fell to the floor. The attacker called the applicant an infidel and said that he would pay for what he had done to his brother, [Mr C]. [Mr D] told the applicant that he knew the applicant was the cause of the change in [Mr C]’s life. The applicant denied it, but [Mr D] said that he had been following [Mr C] and had seen it. He threatened that if the applicant did not keep away from [Mr C] that he would kill him. People started gathering in the streets and pushed [Mr D] away from the applicant. The applicant escaped into his flat and contacted [Mr C] to tell him what had happened;
·[Mr C] told the applicant to leave his flat immediately because his whole family could travel from Fayoum and kill them. [Mr C] said that he would go into hiding too;
·the applicant sent his wife and daughter to his father-in-law’s house. The applicant went to [District 2] and stayed in an apartment owned by the father of one of his friends, [name];
·After 3 days, [Mr D] contacted the applicant and accused him in relation to [Mr C]’s disappearance. He thought that the applicant knew [Mr C]’s whereabouts. The applicant denied this. [Mr D] threatened the applicant if he did not tell him [Mr C]’s location;
·On 6 September 2018, the applicant was going to a supermarket when he was surprised by a black car without numberplates that was heading towards him. The car hit the applicant on the side of the road and sped away. The applicant fell to the ground. He could not move his right arm and felt severe pain. The applicant called his father, who took him to the [Hospital] in [Town 1] where the applicant received medical treatment for a broken arm;
·After 3 days, the applicant received a phone call from [Mr D] saying that he would find the applicant wherever he was. The applicant decided to go to Alexandria. He arrived there on [date] September 2018. He purchased a new mobile phone;
·after 2 days, the applicant’s father told him some people had come to his area and were asking about him. The applicant’s father wasn’t home, but the neighbours were asked and the shop owners near the flat;
·on 19 September 2018 the applicant received another phone call from [Mr D], saying it was not difficult to find out the applicant’s whereabouts or number. He threatened that if the applicant did not tell him of [Mr C]’s whereabouts, he would kill him. He said that he knew the applicant was in Alexandria;
·The applicant contacted [Father A]. [Father A] said that the applicant had to leave Egypt as soon as possible. [Father A] said the police could not assist the applicant, as they would arrest him immediately as it was a crime in Egypt for a Muslim to change his religion;
·The applicant arranged for a relative named [name] in Australia to invite him to come to Australia. The applicant submitted an Australian visa application on 12 October 2018;
·[Mr D] called the applicant on his new mobile phone number, and told the applicant that he should not think of fleeing, and that they were waiting for the applicant to bring [Mr C] back to them. The applicant decided to move to another place in Alexandria where one of his wife’s relatives [lived]. The applicant moved there on 17 October 2018. The applicant did not leave the house at all and stopped using a mobile phone;
·the applicant’s Australian visa was granted on 29 October 2018. The applicant started arranging to travel to Australia, and discovered that he required a final exemption certificate from the military in order to depart. Using a friend’s phone, the applicant contacted his parents to ask for this certificate. Once he had received the certificate, the applicant needed to get a new passport to reflect that he wasn’t needed by the military. The applicant contacted [Father A] and told him that he needed a new passport. [Father A] told the applicant that he knew someone who worked in the passport office, who could issue him with a new passport without the applicant attending in person. His new passport was issued on [date] 2018 and collected by his father;
·The applicant booked a flight ticket on [date] November 2018. He asked [Father A] to send a car to take him from Alexandria to the airport directly. He left the building dressed as [occupation]. The applicant managed to farewell his family at the airport.
The applicant attended an interview with an officer of the Department on 15 May 2019. During his interview he provided the following update on his claims:
·he did not have any problems at the airport when departing Egypt;
·his family have not reported any difficulties to him since he has been in Australia, although he stated that they live a restricted life and go to few places;
·from time to time people have come to the applicant’s parents’ address to ask about him. These enquiries occurred after the applicant arrived in Australia.
During the interview the Departmental officer put adverse information to the applicant, namely that according to the Department’s records, the applicant had travelled to Cairo in October 2018 to undergo a biometrics appointment. However, the applicant had said during the interview that he had not left Alexandria whilst awaiting his Australian visa.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act). The delegate accepted that the applicant is a Coptic Christian and that he engaged in religious activities with the Coptic church in Cairo, but did not accept the applicant assisted a Muslim to convert to Christianity, did not accept that the applicant had been harmed in Egypt for this reason, and did not accept the applicant was of adverse interest to Salafists or any other groups in Cairo or Alexandria. The delegate was not satisfied the applicant was a credible witness.
Evidence before the Tribunal
The applicant applied for review on 10 December 2019. The Tribunal finds the applicant made a valid application for review.
The applicant appeared before the Tribunal on 29 October 2024, 9 January 2025 and 28 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, mother, and an Egyptian-based lawyer named Mr [E].
The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the hearings.
The applicant, via his representative, provided a second statutory declaration to the Tribunal dated 21 October 2024. In his second statutory declaration, he claimed as follows:
·his parents, wife and daughter have had to change address multiple times because of threats and harassment. The constant moves were due to security concerns and ongoing pressure from different groups;
·[Mr C]’s family has been asking about the applicant regularly in all the places he used to go and in the areas where his family used to live. His parents were so stressed they had to relocate;
·the applicant’s father was physically attacked;
·the applicant was informed that an arrest warrant was issued against him by the public prosecutor on 30 July 2019 and it is renewed every year;
·due to the constant threats the applicant’s wife is receiving, and her fear for her daughter’s safety which has resulted in their constant relocation, his wife’s mental health has severely deteriorated;
·the applicant’s daughter has been affected mentally and her academic performance has suffered because of the constant moving around.
On 27 December 2024 the applicant, via his representative, submitted the following additional documents the Tribunal:
·submission by his representative dated 25 December 2024;
·list of country information report references and links to country information reports relied on in the representative’s submission;
·bundle of 15 appendixes to the submission, being:
oAppendix 1 – Legal analysis and supporting documentation by [Mr E];
oAppendix 2 – Statement by [name];
oAppendix 3 – Statement by [name];
oAppendix 4 – Statement by [name] (applicant's wife);
oAppendix 5 – Statement by [name] (applicant’s mother);
oAppendix 6 – Statement by [name];
oAppendix 7 – [District 2] Public Hospital Report documenting injuries sustained by the applicant’s father during an assault;
oAppendix 8 – Clinical Report by Fr [name] addressing the psychological risks and physical harm faced by the applicant;
oAppendix 9 – Birth Certificate of [Mr C];
oAppendix 10 – Medical Reports by Dr. [name] reporting on the psychologist effect of these events on applicant’s daughter [name];
oAppendix 11 – Letter from employer - [Employer 1];
oAppendix 12 – Letter from employer - [Employer 2]
oAppendix 13 – Medical certificate for the applicant’s father;
oAppendix 14 – Copy of second statutory declaration by the applicant (previously submitted)
oAppendix 15 – Letter re correction in the first statutory declaration (previously submitted).
On 5 March 2025 the applicant, via his representative, submitted the following additional documents the Tribunal:
·medical report for the applicant’s father with certified English translation;
·witness statement for the applicant’s father with certified English translation;
·letter from [Mr E], dated 12 February 2025 with certified English translation;
·copy of the Egyptian Penal Code.
On 7 March 2025 the applicant submitted, via his representative, the following additional documents the Tribunal:
·submission from the applicant’s representative dated 7 March 2024 (which the Tribunal takes to mean 7 March 2025), highlighting that laws that criminalise contempt of religion are applied selectively to punish critics of Islam while failing to protect religious minorities;
·article titled ‘The Law of “Blespt of Religions”: unconstitutional texts to protect Islam alone’ dated 9 December 2020;
·further submission from the applicant’s representative attaching a bundle of 2 news articles and one report in English, previously provided to the Tribunal in the Arabic language, in order to highlight ongoing incidents of abuse towards Coptic Christians in Egypt.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Egypt, born in Cairo.
The applicant provided a scanned colour copy of his passport bio-data page in support of his protection visa application. This document states his nationality as Egyptian.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Egypt, and as such his protection claims will be assessed against Egypt as the country of reference and ‘receiving country’ respectively.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
Credibility
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
In its decision record, the delegate of the Minister raised numerous concerns in relation to the credibility of the applicant’s evidence and ultimately rejected the key points of his claims. While the Tribunal has also had a number of concerns regarding the credibility and plausibility of the applicant’s evidence, after considering the individual circumstances of the applicant and the entirety of his evidence, for the reasons set out below, it is persuaded the applicant is a credible witness.
Of particular note, the Tribunal acknowledges from the evidence before it that the applicant appears to have provided as much detail and supporting evidence of his claims as possible at the earliest possible opportunity in the circumstances. The applicant has not raised new claims with the Tribunal that could or should have been made to the Department. The Tribunal also acknowledges the applicant’s endeavours to obtain as much supporting documentation as possible, noting that in protection matters it is often difficult for applicants to obtain documentary evidence to support their claims. Furthermore, since applying for a protection visa in January 2019 the applicant has recounted his narrative on many occasions, including in written statements, at interview with an officer of the Department, and in 3 Tribunal hearings. On each occasion, the applicant provided substantial details of his experiences in Egypt and the incidents which led to his decision to seek asylum in Australia. The Tribunal accepts the applicant is an educated man who, it would be reasonable to expect, would demonstrate a high level of narrative competence. The Tribunal also notes the applicant has been represented by the same lawyer since lodgement of his application, who the Tribunal accepts has provided substantial guidance and assistance to the applicant over the past 6 years. Despite these advantages, the Tribunal was impressed by the level of detail in the applicant’s oral evidence, the reasonable explanations for why certain incidents occurred and who was responsible, and the unchanging nature of his detailed claims. The Tribunal also finds the applicant could have exaggerated certain aspects of his claims, but that he did not, which the Tribunal has also considered in its assessment of the applicant’s credibility.
The Tribunal acknowledges the delegate’s concern that the applicant did not disclose attending his biometrics appointment in Cairo during his Departmental interview, however it notes that a person may forget personal experiences due to a lapse of time or other reasons. The Tribunal does not consider the applicant’s failure to disclose departing Alexandria briefly for a day trip to Cairo as substantially affecting his credibility.
The Tribunal also took oral evidence from the applicant’s wife, mother and [Mr E] during the hearing. Their evidence was consistent with that of the applicant, and expanded on information they had provided in their written statements. In the absence of any other concerns, the Tribunal finds the applicant’s wife, mother and [Mr E] to be credible witnesses. After the third hearing the applicant provided a written statement from his father, which stated that despite his ongoing health problems following gallbladder surgery, he was prepared to give oral evidence by telephone to the Tribunal. On consideration, acknowledging the applicant had already attended 3 hearings and has been waiting a substantial time for an outcome on this matter, and considering the Tribunal was able to satisfactorily resolve its credibility concerns, the Tribunal deemed it unnecessary to take oral evidence from the applicant’s father.
Involvement with the conversion of [Mr C]
The applicant’s claims for protection stem from his claimed involvement in the conversion from Islam to Christianity of a man named [Mr C], who lived in the same building as the applicant’s parents in Cairo. During the hearing the applicant provided further details of his practice of Christianity in Egypt and in Australia. He stated that prior to his marriage he would travel to rural areas to distribute clothing or food, talk about Christianity and distribute bibles when engaging with Christians. He was unable to continue this due to family commitments after marriage. The Tribunal finds from the applicant’s evidence that he did not actively seek to proselytise to non-Christians in Egypt. Likewise, when the applicant discussed his practice of Christianity in Australia, he stated that he is active churchgoer and that he engages in discussions about Christianity if the topic happens to come up, and he would recommend a person attend church if he deemed it appropriate in the circumstances. He did not appear to be a person who actively sought to proselytise his religion to others.
The Tribunal has considered the applicant’s claimed involvement in [Mr C]’s conversion in light of his practice of Christianity in Egypt and Australia. On his evidence, [Mr C] approached the applicant after he had a vision of the Virgin Mary and wanted to know more about Christianity. The applicant spoke with [Mr C] about Christianity and the applicant provided him with a bible and further reading material. When [Mr C] expressed interest in converting to Christianity, the applicant referred him to [Father A]. The applicant attended church with [Mr C] on one occasion prior to [Mr C]’s baptism. The Tribunal does not consider the applicant has exaggerated his involvement in [Mr C]’s journey to Christianity. The applicant did not claim to have initiated it, nor does the Tribunal consider the applicant proselytised to [Mr C]. Their religious conversations appear to have largely taken place in private and the applicant attended church with [Mr C] on very few occasions. The Tribunal finds the applicant’s involvement with [Mr C] consistent with the way he has practiced his religion over his life. The Tribunal accepts that the applicant was approached by a neighbour named [Mr C] about Christianity, the applicant spoke with him about Christianity, provided him with Christian books and a bible, introduced him to [Father A], and attended church with him on a couple of occasions.
The applicant then claimed that his problems in Egypt started when [Mr C]’s brother [Mr D] found out that [Mr C] had attended church and that the applicant was involved in [Mr C]’s decision to attend church. The Tribunal expressed concern over how [Mr D] would have come to know of the applicant’s involvement in [Mr C]’s decision to attend church, considering the applicant’s oral evidence that the church they attended was crowded, and it appeared that they had only attended church together on few occasions after [Mr C]’s baptism. He said that [Mr C] had made a lot of changes to his life after his conversion to Christianity, including changing address and jobs. [Mr C] told him that his brother had found him in [District 1] and was enquiring into his life. The applicant said it was possible that a neighbour had informed [Mr D] that he and [Mr C] were spending time together.
The applicant said that on 28 August 2018 the applicant was approached by [Mr C]’s brother [Mr D] outside his apartment, who then started to attack him and only stopped when a neighbour [intervened]. The applicant informed [Father A] and [Mr C], and [Mr C] told the applicant to leave his apartment immediately in case his whole family came back to harm the applicant. The applicant sent his wife and daughter to stay with his wife’s parents. The applicant went to stay at an apartment belonging to a friend. Less than a week later, the applicant was struck by a car when walking on the street near his friend’s apartment. He suffered a broken arm. He tried to report the incident to the police, but the car had no numberplates and the police refused to register a complaint without further details. Three days later, the applicant received a telephone call from [Mr D] who asked about [Mr C]’s whereabouts and threatened the applicant that this would only be the beginning if he did not tell him of [Mr C]’s whereabouts. As such, the applicant connected the hit-and-run incident to [Mr D]. He decided to go to Alexandria to avoid [Mr D]. He changed his mobile phone number. However, a few days later he received another phone call from [Mr D] again threatening to kill him if he did not reveal [Mr C]’s whereabouts, and saying that he knew the applicant was in Alexandria. When asked how [Mr D] was able to obtain his new number, the applicant said that if someone had a connection within a telecommunications company, it would not be difficult to get to a number. [Father A] advised the applicant to leave Egypt as soon as possible. He advised against the applicant contacting the police, as he thought the applicant would get in trouble in relation to [Mr C]’s conversion.
Evidence from witnesses
The applicant’s evidence in relation to his involvement in [Mr C]’s conversion is supported by the letter from [Father A]. While the applicant did not call [Father A] as a witness, and the Tribunal was unable to take oral evidence from him, the Tribunal accepts as reasonable the applicant’s explanation as to why [Father A] was unable to give oral evidence, namely that [Father A] is elderly, infirm, residing in a monastery, and that the applicant has not had contact with him for some years. Had the Tribunal been able to consider this matter sooner, it may have been able to take evidence from [Father A], which would have been of great assistance.
The applicant said he last had contact with [Father A] prior to the outbreak of the Covid 19 pandemic when [Father A] visited Australia. The Tribunal pressed the applicant on his last interaction with [Father A] in Australia, and inquired whether the applicant had any update on what had happened to [Mr C] since their last interaction on 28 August 2018. The applicant said that he had asked after [Mr C] twice, but that [Father A] did not wish to answer and, considering the applicant’s respect for him, the applicant did not wish to press him further. The Tribunal is concerned that [Father A] did not want to update the applicant about [Mr C], considering this would have been relevant to whether it may be safe for the applicant to return to Egypt, but it accepts as reasonable the applicant’s conduct not to press [Father A], a respected elderly priest, for more information. The Tribunal is also concerned that the letter from [Father A] dated 4 January 2019 does not provide any details of the harm and harassment the applicant faced, rather, the letter simply says the situation ‘posed grave danger on [the applicant’s] safety’. However, on balance, the Tribunal finds the letter supports the applicant’s claims that he was involved in [Mr C]’s conversion and that he faced problems after that.
The Tribunal places significant weight on the evidence of the lawyer [Mr E], who provided both written and oral evidence, and who the Tribunal accepts has no personal connection to the applicant. [Mr E] said during the third hearing that he came to be involved in this matter after the applicant’s father was assaulted. [Mr E] was engaged to apply for a restraining order for the applicant’s father against [Mr D]. This was because the applicant’s father was physically assaulted on 4 January 2020 by a group of men enquiring into the applicant’s whereabouts. The applicant’s father believed these men had been sent by [Mr D]. As the applicant’s father could not identify his assailants, [Mr E] intended to file a case against [Mr D]. [Mr E] said that when he went to file the case, he was informed that there had been an arrest warrant issued against the applicant. [Mr E] tried to find out the charges, but the police refused to provide them. [Mr E] then went to a local court to try to obtain further information, which was denied. The Tribunal put to the applicant that considering he did not know the nature of the charges against him, it was possible that the arrest warrant could have related to an unrelated matter. The applicant said that he had never previously had any problems with the authorities. While the applicant has not been able to produce a copy of the arrest warrant, it notes this is consistent with country information contained in a Response to Information Request by the Immigration and Refugee Board of Canada dated 4 May 2021 which states ‘The accused "usually" does not receive a copy of the document, but they would be shown the document when they were arrested. An individual who has been charged does not receive any documents; however, sometimes their lawyer receives a copy of the documents or is permitted to take pictures of the documents. Individuals will also pay bribes to obtain access to documents and to be permitted to take pictures of them, however, they will not always receive access to documents and "in many cases," individuals cannot obtain this information’.[2] The Tribunal accepts [Mr E] took reasonable steps in the circumstances to try and obtain a copy of the arrest warrant, and, in light of the country information, the Tribunal is satisfied there is a reasonable explanation as to why the arrest warrant was not provided to the Tribunal.
[2] ‘Response to Information Requests Egypt: Summonses, arrest warrants, and related police or national security documents, including appearance, security features, issuance procedures, and samples; court decisions and investigation reports from the Public Prosecution Office, including appearance, security features, issuance procedures, and samples (2018–April 2021)’, Research Directorate, Immigration and Refugee Board of Canada, 4 May 2021,
The applicant’s wife stated that the family has moved from place to place after the applicant’s father was assaulted. Her daughter attends school online. She started receiving threatening calls a proximally 6 to 7 months after the applicant left Egypt. The callers say that they will not forget the applicant and will not leave him alone. She does not know who is making the calls. She last received a threatening call shortly before she travelled to [a country] to meet the applicant. The Tribunal notes this is consistent with the applicant’s oral evidence as to when he believed his wife last received such a call. The applicant’s mother provided further details regarding the assault on her husband, the applicant’s father, on 4 January 2020. She also stated that people would come to their building to ask after the applicant. She did not see them, as the men did not come up to their apartment, however she was informed of this by neighbours and nearby shop owners. She stated that she had received telephone calls from unknown people saying that they would not leave the applicant alone. While the evidence from the applicant’s wife and mother was brief, considering the difficulties with taking evidence by telephone from witnesses residing overseas and using an interpreter, the Tribunal notes their oral evidence was consistent with their written statements and consistent with the evidence of the applicant. As such, the Tribunal gives their evidence some weight.
Findings on the evidence and country information
On the basis of the evidence before it the Tribunal accepts that the applicant experienced harm and harassment after [Mr C]’s conversion to Christianity. The Tribunal has concerns considering the lack of more detailed and recent evidence from [Father A], the applicant’s lack of knowledge regarding what has happened to [Mr C], and the plausibility of [Mr D] coming to know of the applicant’s involvement in [Mr C]’s conversion. However, when considering the applicant’s evidence as a whole, and the supporting evidence from [Father A], [Mr E], the applicant’s family members, and the letters from other supporting witnesses, the Tribunal does not consider it implausible that [Mr C]’s family members would come to know of [Mr C]’s church attendance with the applicant, and that [Mr C]’s family perceived the applicant to be one of the key people involved in [Mr C]’s conversion to Christianity. The Tribunal accepts the applicant is the subject of an arrest warrant.
The Tribunal’s findings are supported by country information regarding the treatment of Christian converts and those perceived to be proselytising. According to the latest DFAT country information report on Egypt, ‘[c]onverts from Islam to other religions are not generally subject to officially sanctioned violence, detention or surveillance. However, they face significant societal discrimination in the form of rejection, ostracism and sometimes violence from their families or communities.’[3] ‘DFAT assesses that a person converting from Islam faces a high risk of societal discrimination in the form of rejection, ostracism and possible violence from their families and communities.’[4] The UK Country Policy and Information Note on the Christians in Egypt dated December 2023 refers to the 2023 Open Doors dossier, which notes ‘‘…converts from a Muslim background face pressure in particular from their (extended) family for shaming values like the honor of the family.’[5] On the evidence and country information before the Tribunal, the Tribunal accepts [Mr C]’s family sought to harm [Mr C] for attending church, and it considers it plausible that they would seek to harm the applicant if they believed he was involved.
[3] 'DFAT Country Information Report Egypt' (DFAT Report), Department of Foreign Affairs and Trade, 17 June 2019 at 3.9.
[4] DFAT Report at 3.11.
[5] Open Doors, ‘Full Country Dossiers (Egypt)…’ (page 28), January 2023; 'Country Policy and Information Note - Egypt: Christians', UK Home Office, December 2023.
The Tribunal put to the applicant that there was no statutory prohibition in Egypt on converting from one religion to another and questioned the applicant on what law he may have breached in order for there to be an arrest warrant against him. The applicant said that under Sharia law a person who converts from Islam is deemed to be an infidel and a traitor, and the applicant would also be seen as an enemy as he had helped [Mr C] to convert and may be perceived as someone who would help others to convert from Islam to Christianity. During the hearing the Tribunal questioned [Mr E] on what law the applicant may have breached. [Mr E], who gave evidence using the interpreter, stated that there was a ‘renouncement law’ which impacted both the converted and converters. After the third hearing the applicant provided a further written statement from [Mr E] dated 12 February 2025, which stated that Article 98(f) of the Egyptian Penal Code can be used to prosecute individuals whose actions are deemed as in contempt of religion, promotion of extremist ideas, or a threat to national unity. [Mr E] stated in his letter that this Article has been used to prosecute individuals accused of proselytising.
Article 98(f) of the Egyptian Penal Code criminalises ‘insulting [the three] heavenly religions,’ also known as ‘contempt for religion’ (i.e., blasphemy).[6] According to the United States Commission on International Religious Freedom (USCIRF) 2023 Country Update Report, ‘state security, prosecutors, and courts have continued investigation, arrest, detention, prosecution and, in some cases, conviction and sentencing on the basis of alleged breaches of the blasphemy law.’[7] According to the United States Department of State Egypt Human Rights Report for 2023 (US Human Rights Report 2023), authorities frequently prosecuted alleged contempt of Sunni Islam or Christianity, and the government often invoked the vague term “family principles” to punish perceived blasphemy.[8] DFAT reports that those accused of blasphemy rarely have an adequate defence counsel and penalties include fines and/or imprisonment ranging from six months to five years.[9] Furthermore, the latest DFAT country information report on Egypt’s refers to information from USCIRF that there were 15 known ongoing cases and investigations under Article 98(f) in 2017, an increase from 2016.[10] Online reports detail a number of more recent arrests of Christians on blasphemy-related charges.[11]
[6] 'Country Update: Egypt', United States Commission on International Religious Freedom (USCIRF Update), 4 August 2023 Country Update: Religious Freedom Conditions in Egypt
[7] Ibid.
[8] 'Country Reports on Human Rights Practices for 2023 - Egypt', US Department of State, 20 April 2024.
[9] DFAT Report at 3.16.
[10] DFAT Report at 3.15.
[11] ‘Two Christians Released in Egypt After 3 Years in Prison’, Persecution.org, 7 February 2025, Two Christians Released in Egypt After 3 Years in Prison - International Christian Concern; Ahmed Mohamed | USCIRF; Nour Fayez Ibrahim Gerges | USCIRF; 'United States Commission on International Religious Freedom 2024 Annual Report', United States Commission on International Religious Freedom (USCIRF), May 2024, pp.54-55.
The Tribunal has accepted the applicant was identified as a person involved in [Mr C]’s conversion to Christianity and, as a result, he was targeted by [Mr C]’s brother [Mr D]. Having regard to the facts of this particular case, the Tribunal cannot rule out a link between the applicant’s involvement in [Mr C]’s conversion and the arrest warrant against the applicant since July 2019. The Tribunal is satisfied the applicant has been imputed to be a proselytiser by [Mr C]’s family for his involvement in [Mr C]’s conversion. According to the UK Country Policy and Information Note, ‘[i]n the absence of confirmation of positive treatment and in the wider context of prevailing state and societal attitudes, Christians who are accused of proselytising seriously not casually are likely to continue to be at risk of persecution.’[12] On the basis of the evidence before it, the Tribunal cannot exclude as remote and insubstantial the chance that the applicant would be arrested upon return to Egypt in connection with blasphemy or proselytising allegations.
[12] 'Country Policy and Information Note - Egypt: Christians', UK Home Office, December 2023.
According to DFAT, human rights observers report that prisoners in detention facilities are routinely beaten during the course of interrogations.[13] There were numerous reports the government or its agents committed arbitrary or unlawful killings while making arrests or holding persons in custody. According to the US Human Rights Report 2023, local and international rights groups reported instances of persons tortured to death in prisons and detention centers.[14]
Conclusion
[13] DFAT Report at 4.20.
[14] 'Country Reports on Human Rights Practices for 2023 - Egypt', US Department of State, 20 April 2024.
Considering the abovementioned country information, the Tribunal is satisfied the applicant would face a real chance of arrest, detention and imprisonment if he returned to Egypt. It follows, on the country information, that he would face a real chance of beatings, torture or abuse.
On the evidence before it, the Tribunal accepts there is a real chance the applicant would face a threat to his life or liberty, significant physical harassment and significant physical ill treatment from the Egyptian authorities. The Tribunal is satisfied this would amount to serious harm under s 5J(5) of the Act. The Tribunal is satisfied the essential and significant reason for the harm is religion. The Tribunal is satisfied the persecution involves systematic and discriminatory conduct. The Tribunal finds that the real chance of persecution relates to all areas of Egypt; the applicant faces a real chance of arrest immediately upon re-entering Egypt. The Tribunal does not accept the applicant could take reasonable steps to modify his behaviour so there is no real chance of persecution; it does not see how the applicant could do this in the circumstances.
The Tribunal has considered s 36(3) of the Act, but based on the available evidence the Tribunal finds the applicant does not have a right to enter and reside in a third country and therefore s 36(3) is not applicable.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Egypt and is a refugee within the meaning of s 5H(1)(a) of the Act.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Dates of hearings: 29 October 2024, 9 January 2025 and 28 January 2025
Representative: Mrs Lidia Soliman (MARN: 0747355)
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.
…
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