2015965 (Refugee)

[2023] AATA 1321

2015965 (Refugee) [2023] AATA 1321 (21 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Fardin Nikjoo

CASE NUMBER:  2015965

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Luke Hardy

DATE:21 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2023 at 3:42pm

CATCHWORDS

REFUGEE – protection visa – Egypt – evangelical Christian convictions – object of religious discrimination – fears the MB – applicant is not genuinely evangelical – fraudulent transactions at the bank – both of the applicants, on their own, are unreliable witnesses – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309

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 Immigration and Border Protection to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are sibling citizens of Egypt. They arrived in Australia on [date] May 2015 on visitor visas. They lodged their PV application on 22 June 2015. The delegate refused to grant the visas on 13 February 2017.

3. The Tribunal, differently-constituted, affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to a consent order of the Court, the Minister conceding that the Tribunal

   fell into jurisdictional error by making its decision on the basis of a fundamental misunderstanding of the evidence before it, and in a way that was material to the outcome: Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [71]-[72]. Specifically, the second respondent at paragraph [73] of its decision found that there was no country information indicating that evangelising was illegal in Egypt and that there was country information that said that “while proselytising is not illegal, Egyptian authorities tolerate non-Muslim religious groups as long as they don’t proselytise amongst Muslims”. At [2.3.18] of the Country Information and Guidance – Egypt: Christians prepared by the Home Office of the Government of the United Kingdom (country information), the report from the link at footnote 4 of paragraph [73], it is stated that neither the constitution nor the civil or penal codes prohibit proselytising and that “the government generally tolerates foreign religious workers on condition that they do not proselytise Muslims” (emphasis added). The second respondent was not a “foreign religious worker”. The Tribunal’s misunderstanding of the country information was material to the Tribunal’s findings on the applicant’s claims and therefore, to the outcome of the review.

4. The applicants appeared before the Tribunal on 27 October 2022 and 12 January 2023 to give evidence and present arguments. They are represented in relation to the review by an adviser who attended both hearings.

5. The Tribunal hearings were facilitated by interpreters in the Arabic-English medium, although both applicants were able to give oral testimony in fluent English.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

10. 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

11. In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    The issues

12. The key issue in this case is whether, on accepted evidence, either of the applicants are entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

14. The applicants, who come from [Location 1], claim fear of being persecuted because of their evangelical Christian convictions and because of [Mr A]’s efforts to prevent a Muslim extremist from engaging in fraudulent and questionable dealings at the bank where he worked. [Mr A] also claims to have been the object of religious discrimination at work. He claims the Egyptian authorities will wrongly impute him to have been complicit in the Muslim extremist’s criminal activities. [Ms B] claims that if she returns to Egypt she may be forced into marriage with the same Muslim extremist. She claims she will not be able to proselytise according to what she believes is her religious calling because, although preaching and religious conversion are not illegal in Egypt, Muslims have been known to exploit laws against “insulting religion.”

15. The applicants’ claims to the then-Immigration Department appear in the applicants’ PV application form, a 20 June 2016 statement and other submissions including a report to Egyptian police dated 5 May 2015. Their claims are also summarised in the delegate’s decision which was submitted to the Tribunal  for the purposes of the review. Although the applicants disagree with the delegate’s conclusions, they have not contested the summary of their claims. A similar summary of the applicants’ claims to the Department appear in the decision by the previously-constituted Tribunal. Whereas the findings of the previously-constituted Tribunal are quashed, the evidence before that Tribunal is evidence before me. Having cross-checked the claims made to the Department and to the previously-constituted Tribunal, I observe that the latter’s summary of the applicants’ original claims (mainly appearing in a statement of claims dated 20 June 2016) is a helpful one, and so I am citing it here in edited form:

    Protection Visa Application [and associated statement of claims dated 20 June 2016]

    9. The applicant claimed that he feared the Muslim Brotherhood (MB) and Egyptian government, the head of the bank where he worked [,] … the head of customer service and [Mr C], a prominent member of the Muslim brotherhood who had threatened to kill the applicant and his sister.

    10. The applicant dealt with [Mr C] at the bank and he often suggested to the applicant that he convert to Islam as this will assist him professionally and help him to become wealthy. The customer service manager and other employees would also ask him to come and pray with them every day, and he was scared to ask for time off for Christian religious holidays or to show Christian iconography.

    11. He was the only Christian there and this made his life very unpleasant but he had to endure this as jobs for Christians were hard to come by. He believed that his refusal of [Mr C]’s entreaties to convert made him want to hurt the applicant. [Mr C] was one of the biggest clients at their [bank] – he used to transfer lots of money overseas to MB and extremist organisations.

    12. In February 2015 the Egyptian government limited deposits to USD 50,000/month. In late February and early March he noticed that [Mr C] was opening many accounts in employees’ and his families’ names with him having power of attorney over them. Each of these accounts brought in the maximum amount allowed to be deposited in the first week of opening. [Mr C] then wanted to transfer all this money to one account belonging to a company in [Country 1]. The applicant told him that this couldn’t be done as the money had to be in the account for three months before it could be transferred. [Mr C] became angry and shouted at the applicant and called on the manager and customer service manager.

    13. His manager came in and said he should do the transfers because [Mr C] was a special case as he was one of their biggest clients. So he did the transfer with a promise the manager would co-sign but he believed this never occurred. This failure to co-sign had happened once before when the manager told the applicant to sign a transfer for [Mr C] to transfer his son’s money (who was wanted by the police) into [Mr C]’s account.

    14. [Mr C] asked him to do illegal transactions in March 2015 [e.g., an “illegal” transfer to his own account, buying foreign currency and transferring money to a company he owned] and the service manager again made him do it without co-signing. On another occasion he told his service manager that one of [Mr C]’s transactions required the bank manager’s approval but the service manager became angry, said that he shouldn’t involve anyone with [Mr C]’s dealings as he was powerful and could hurt the applicant or his family at any time as he knew where the applicant lived. He was frightened and told the manager that he would be reporting these dealings to the Egyptian Central Bank.

    15. When he returned home on 8 March his sister [Ms B] told him that [Mr C] had said to say hullo and for her to take care of [him]. He [Mr C] was [attending an activities day] at [School 1] where she [Ms B] was working on activities associated with the Anglican Church. She said that he was like other parents and engaged her in conversation. The applicant believed that [Mr C] had him and his sister under surveillance and that this was a message to intimidate the applicant.

    16. [The applicants] decided to leave Egypt and so [Mr A] got [Ms B] to get their uncle to send her an invitation to visit which he did and she was granted a visa on 8 April 2015. The next day [9 April 2015] he went to the bank manager and explained what was going on and followed this up with an email because he wanted to leave a paper trail. He didn’t hear back from the manager so he sent the email to the compliance section and was then brought into the bank manager’s office [on 15 April 2015] where the bank and customer service manager berated him for doing this.

    17. The same day he was attacked in front of his house and beaten and reported it to the police but because he couldn’t name them the police said that if he saw them again he should bring them to the police. He requested a month’s leave from the bank manager on 21 April 2015, applied for a visa to Australia the next day and this was granted on 12 [May] 2015.

    18. He was given duties outside the branch and was called into the operations department asking to come and explain and incorrect transfer (involving [Mr C]). He saw his stamp and his signature but he hadn’t done this transfer so he took it and showed the bank manager who then told the applicant he would investigate but to keep it to himself as it could be dangerous. The applicant said that he needed to report it because of the seriousness of the fraud.

    19. On 5 May 2015 [Ms B]’s car was hit and people came at her and she believed that if a crowd hadn’t gathered she would have been kidnapped. She reported the incident to the police. On 8 May 2015 [Mr C] called the applicant and insisted he see him. He told the applicant he was behind the car accident and showed him a marriage certificate with [Ms B]’s name and signature on it and [Mr C] as the spouse and that he could take her by law any time he wanted and convert her to Islam. [Mr C] again tried to convince the applicant to convert to Islam.

    20. [Mr A] booked tickets for him and [Ms B] on 12 May 2015; on 20 May [2015] he submitted his complaint [to the Central Bank] about what was happening [at his] bank [and how the managers were setting him up ‘for the fall”]. On 22 May 2015 while returning home with [Ms B] at about 7 pm three gunshots struck the wall next to them and they ran into the building and called their uncle and went to him (he was in Alexandria). While there his uncle received a call asking if the applicant was there but when he said the applicant wasn’t, the caller told him to get the applicant to call the bank. They flew to Australia on [date] May 2015.

    21. He also fears the MB who would want to silence him for all he knows about [Mr C] and the bank collaborators. If he returned he would be detained and tortured and killed for assisting the MB money transfers or if he told the government what happened he would be a witness against one of the most powerful organisations in the world (MB) who would want to silence him. He couldn’t hide anywhere in Egypt. His sister [Ms B] is an evangelist and is known as such and she would face persecution in Egypt because of it.

    [presently-constituted Tribunal’s emphasis above]

16. According to the applicants, the above-described events occurred in [Location 1], [BANK 1] branch being situated in [a] district.

17. Both applicants claimed at the time of their PV application to be Orthodox (and evangelical) Coptic Christians. [Ms B] claimed in particular to fear being persecuted for her work as an evangelist. She claimed the 5 May 2015 motor vehicle incident was an “attempted kidnapping.” She claimed that the police ridiculed her when she reported that incident because she had not obtained the name and details of her “attacker.” She said the police officer told her she would be better off converting to Islam. She said she had in many instances been criticised for being a Christian because she appeared in public without a hijab.

18. In the original PV application, [Mr C] was identified as [Mr C]. In the course of his review application, [Mr A] has provided information obtained from the Internet to support his claim that [Mr C] is a real person. He said he located [Mr C] via an Internet App that allows one to enter a telephone number for confirmation of its ownership. He said he entered [Mr C]’s telephone number, as retained in 2015, and found that it still belongs to [Mr C] who, he hence argued, is a real person.

19. The applicants criticised the delegate’s summary of claims in a submission dated 5 July 2016. The applicants claimed that the interpreting between the delegate and them was “weak” and that it was a source of frustration to them having to clarify their claims in English. The 5 July 2015 submission clarified that [Mr A] now felt wedged, as it were, between the bank, as well as [Mr C] and the Muslim Brotherhood (MB), on one side, for having blown the whistle on them and, on the other, the Egyptian authorities who, in the event of auditing the bank’s activities, would see he had signed off on questionable and fraudulent transactions, his work likely having not been countersigned by anyone in the bank above him. The submission included an argument about the lack of effect that subsequent revision to the banking laws in Egypt would have had in this case -- laws that effectively ceased to regard transactions at the centre of these claims as illegal – because, according to [Mr A], the laws in effect at the time of the transactions would still be applied to transactions made during the time those laws were in effect, even in the event of then-suspicious transactions only being discovered after the laws had been relaxed. The submission did not suggest that [Mr C] had been accused or charged with anything, but appeared nevertheless to speculate that if [Mr C] were to be charged he would want to make sure that [Mr A] were not alive to testify against him. The submission argued that [Mr A] would not likely be granted immunity.  The submission referred to a Central Bank of Egypt (CBE) audit of the [BANK 1] that commenced in June 2015 after the applicants left Egypt. It suggests that had the audit commenced before the applicants could leave Egypt they would have been prevented from leaving.

20. The submission refers to the alleged 22 May 2015 shooting attack on the applicants because the delegate had asked them how they could be sure that what they had heard had been gunshots specifically targeting them. The submission said “how can one know [?]” and went on to suggest that the applicants believed they were targets of what they heard to be gunshots on because of other threats allegedly made, the “intentional” traffic “‘accident’” of 5 May 2015, and the alleged (9) April 2015 beating of [Mr A].

21. The submission cited [Ms B] having claimed that during the 5 May 2015 incident, two persons approached her car, apparently intending to kidnap her, one on each side her car, only to be dissuaded from doing so due to passers-by attending the scene. It said [Ms B] was in no doubt that it had been an intended kidnapping because [Mr C] had described it as such in a subsequent telephone call to [Mr A].

22. The submission sought to clarify how [Ms B]’s signature was on the contrived “marriage certificate” or orfi, saying that [Mr C] would easily have been able to access her details so as to forge that detail.

23. The submission emphasised that [Ms B] is an evangelist who had been threatened and spat on by Muslims on many occasions. It said that the government would not help the applicants due to their being Christian.

1. The applicants submitted a purported report to [Location 1] police, along with translation, relating to the alleged 5 May 2015 motor vehicle incident. The report cites [Ms B] reporting that she was insulted by a microbus driver on that day. There follows an apparent transcript of what questions [Ms B] was asked and what she told the police. She said a microbus swerved at her in traffic and hit her car. She said the driver got out of the microbus, approached her car and stated insulting her. She said he called her derogatory names that Muslims call Christian women. She said the man did this in front of “People on the street.” There are questions from the interviewing police officer like “What is the exact name and address of the defendant?” but no question even remotely like “Did you manage to note the registration number of the microbus?” However, the transcript shows that [Ms B] may have obviated the need for the question to be asked because she told the officer she had not been able to memorise that number. The transcript shows that [Ms B] was asked the purpose of her report and that her reply was “… I fear that the incident was intentional, not accidental.” Although it is claimed the microbus driver berated [Ms B] for being Christian (she would not have been wearing a hijab), none of the transcript suggests that he knew specifically with whom he was speaking during the incident. An associated document is an observation report from a [Location 1] police officer stating that [Ms B]’s car was hit from behind causing some damage to the rear bumper, left rear lights and boot (or trunk).

2. I make the following interim observations in regard to this material: the police officer’s report appears more to support [Ms B]’s car having been hit accidentally by a vehicle that was behind her, meaning that her account of the vehicle swerving at her in traffic appears unsupported, if not contradicted; the question about whether [Ms B] had been able to ascertain the name and details of the other driver seems routine, and the transcript does not appear to support the suggestion that she was “ridiculed” for not presenting the other driver to the police; the report does not suggest that the police officer said to her that she would be better off converting to Islam; and [Ms B] reported to the police officer only one person, not two, having approached her after the collision, contrary to other evidence in this matter.

3. [Ms B] said to the previously-constituted Tribunal that “some people” from the microbus had tried to kidnap her but were not successful as the scene was too crowded. Asked if she had mentioned this in the police report, she said she had not because she had been scared of telling the police officer about her brother, lest he be detained. She said the police officer to whom she reported had not appeared co-operative, but it appears to me he endeavoured, appropriate to the circumstances, to find out what had happened to her car and who she accused of doing it.

4. [Mr A] called this incident “a staged car accident.” He also said in his 20 June 2016 statutory declaration that “some people” came at [Ms B] after the collision and looked like they were going to take her away but for the gathering of a big crowd.

5. [Mr A] claimed he received, three days later, a telephone call from [Mr C] who said that the accident was a warning. He claimed to the Department and to the previously-constituted Tribunal that the hostile [Mr C] summoned him to a meeting that he went on to attend. He said that at that meeting [Mr C] showed him a marriage certificate with his sister’s name on it and told him that if he continued with his complaints he, [Mr A], would be hurt and he, [Mr C], would marry and convert his sister. [Mr A] produced a copy of this document along with an English translation. Addressing concerns about the perceived implausibility of being handed a copy of such a document in the claimed circumstances, [Mr A] said in an 11 October 2022 submission that it is usual for duplicate certificates of traditional marriage, or orfi, to be generated for signature by both parties, one to be kept by the groom and one to be kept by the wife. He said that [Mr C], in handing him a copy, was demonstrating power over him. [Mr A] criticised concerns regarding the authenticity of the document, saying that if he had not been able to present the copy in his possession he might have been assumed to have fabricated the claim about [Mr C] having shown it to him.

6. The applicants submitted to the previously-constituted Tribunal a 21 April 2015 letter of support from [Mr A]’s employer in the matter of his 22 April 2015 Visitor visa application. The letter states that [Mr A] was at the time a “[occupation]” at the [BANK 1], had accrued leave of 26 days and was approved to take leave requested between 1 and 22 June 2015. His letter is of some interest because according to [Mr A]’s claims, he was already offside with his seniors at the bank at least since March 2015, and on 9 and 15 April 2015, when he had been ordered under threat to be silent about matters involving [Mr C] and declaimed nevertheless to management that he intended to report the [BANK 1]’s irregular dealing with [Mr C] to the Egyptian Central Bank.

7. In a post-hearing submission to the previously-constituted Tribunal, [Mr A] provided an overview of banks in Egypt in which the [BANK 1] was ranked the [number] biggest bank in that country with a market share of [number] per cent in 2013. The same submission included a number of attachments relating to the MB and its illegal or shady fundraising activities. There were also translated screen captures of social media messages. One is a [Social media] message purportedly sent on 9 February 2016 by his former boss at the [BANK 1], [Mr E], saying:

   You cowardly bastard, by GOD I really miss you, you left … after you flipped the chairs and tables …, I am really upset with you but still reassure me about you, you (ugly) person.

8. The other messages, dated 6 June 2015 are from [Mr F] and say: “[applicant’s name] call me” and “Or send me your number.” [Mr A] claimed that these senders tried over and over to send disingenuous “friend” requests on [Social media]. He said he did not reply lest they might find out where he was hiding.

9. The submission also includes a screen capture of a message from [a BANK 1] manager forwarding an 8 June 2015 email from the CBE informing [BANK 1] of a then-imminent visit to that bank by CBE inspectors. [Mr A] indicated that this is evidence of the audit having been instigated soon after, once safely in Australia, he reported [Mr C]’s dealings with the [BANK 1] to the CBE.

10. [Ms B] told the previously-constituted Tribunal that she had been an evangelist in Egypt for about five years. She said she had been part of a group called “[Group 1],” an Anglican Church initiative that conducted youth sports training and related activities in Egypt. She told the previously-constituted Tribunal that she and her fellow [Group 1] workers evangelised “under cover” as it was essentially illegal. She said they did not mention Jesus’ name but performed plays based on the Bible. She said that in the five years of her time with [Group 1] she and her colleagues had been called names and subjected to abusive remarks. Asked by the previously-constituted Tribunal if anything else had happened to her other than criticism during her work with [Group 1], she claimed she had had her hair pulled and rocks thrown at her. Asked if any [Group 1] members had ever been imprisoned for proselytising, [Ms B] said that no-one had been to the best of her knowledge. Asked why there would be a problem for her returning to her [Group 1] activities, she said that because of what [Mr A] had done at the bank, [Mr C] would likely have told people about [Group 1] and she would be arrested. She did not provide any evidence of [Group 1] members in Egypt having been arrested. The previously-constituted Tribunal put to [Ms B] that the Anglican Church is not an evangelical church. In response, she said she and her colleagues were interested in saving souls. She said she was now a Pentecostalist in Australia and not Anglican. She had been a member of that church since 2015 and taught Sunday school there.

    Evidence to the presently-constituted Tribunal

    Pre-hearing

11. [Mr A]’s 11 October 2022 submission provides links to independent material describing the [BANK 1] as having been awarded [details deleted]. He said it had been repeatedly praised as being one of the most reliable banks in Egypt and also one of the top [banks] in 2020. [Mr A] said all this was probably why [Mr C] had not taken his business to a smaller bank or a more traditional Islamic bank. All this material would appear to suggest that the [BANK 1] passed its 2015 audit by the CBE without blemish.

12. [Mr A] submitted printouts of screen captures showing that all of the significant individuals in his case against the [BANK 1] and the MB are real people.

13. [Mr A] claimed in his 11 October 2022 statutory declaration that [Ms B]’s sports activities were carried out for the Anglican church. Meanwhile, [Ms B]’s own pre-hearing statutory declaration says she was part of the Egyptian Presbyterian (i.e., not Anglican) Church’s “[Group 1]” program. She said that the program organised sports days for Egyptian youth. She said she and her fellow [organisers] used to perform skits during these sports days, drawing on stories form the Bible without ever explicitly stating their source. She said they used to try and spread words of love and peace. She said that onlookers would not have been able to tell that they were subtly evangelising. She said, however, that on one occasion a passer-by looked on and perceived that her group’s activities seemed evangelical, asked her for her name and disclosed his/her intention to call the police.

14. [Ms B] claimed that throughout her childhood, growing up, she had faced many instances of discrimination and intimidation from Muslim students and teachers. She claimed that “the man who threatened to kidnap” her had forged a marriage certificate in his and her name to punish her specifically for her evangelical activities and also as a means of intimidating her brother [Mr A] who had handled his affairs at the [BANK 1]. She declared that she was willing to search online for more “data,” or evidence, in support of her claims.

15. [Ms B] provided two letters of support, one from a pastor and the other from a minister of an unnamed Pentecostal church in Sydney, attesting to her close involvement in Christian education and evangelism here in Australia.

16. In his pre-hearing statutory declaration, [Mr A] spoke at length in response to his and [Ms B]’s claims about having been shot at on 22 May 2015:

    1- We don’t know who shot at us, is it [Mr C] [sic] and his people, is it the branch manager [or] the customer service manager ([Mr F]) or someone they hired. Are the one shoot at us is a professional hit man or just an amateur who is scared of me if I testified and wanted to get rid of me.

    2- The street is a wide street whish [sic] have apartments building on both sides, no houses at my city.

    3- The street is a quiet one as I mention at this time but also at this time which most of the families go to their balcony to enjoy the cool breath of air and wind down after a hot summer day and drink some tea or any refreshments. Any of these people could see the shooter, which puts him at risk so he and I presume he’s a man not a women. Would put this into confederation [i.e., consideration?] so he must been waiting in a car in the opposite direction of my building.

    4- The building next to the building where I live, the ground floor is a Mosque.

    5- During this time also the prayer of the Maghrib [at 6:44pm] , which will take around 15-20 minutes sometimes people stay inside the Mosque longer which poses another risk that people will get out of the prayer soon and they might catch him.

    [a chart giving Muslim prayer times appears at this point in the statutory declaration]

    6- If the shooter waited for us in front of the apartment building door (entrance) as the member suggested, he will be very obvious to the people in the opposite side of the street and to anyone who is going in and out of the Mosque and probably someone will ask him who are you and why you are waiting here if they recognized he’s not from the area.

    7- Also I’ll notice him to[o] and properly [or probably?] will run away with the car. Also the member mentioned why he waited till we went out of the car, probably because the car works as a shield and protection for us and again he will be exposed and I could hit him with the car

    My point is there’s too many variables in this situation other than what the [previously-constituted Tribunal] mentioned.

    Grounds for remittal

17. At the first hearing, I asked the applicants and their adviser if they had raised any grounds for appeal additional to the ground on which their matter was ultimately remitted by consent. The reply from all was that the only ground raised had been that the previously-constituted Tribunal, in finding that the Egyptian government generally tolerates “religious workers on condition that they do not proselytise Muslims”  had mistakenly relied on information about that government’s attitude to foreign religious workers. Regarding this, I note that the source[1] referred to and relied upon by the previously-constituted Tribunal was published several years ago. A more up-to-date version, albeit citing 2019 reporting[2] from Australia’s Department of Foreign Affairs and Trade (DFAT), was published in October 2020.[3] I have had regard directly to the DFAT reporting:

    [1] “Country Information and Guidance – Egypt: Christians” Home Office, UK Government, updated 30 June 2014; located by the previously-constituted Tribunal at “DFAT Country Information Report: Egypt,” DFAT, 17 June 2019

    [3] “Country Policy and Information Note Egypt: Christians,” Home Office, UK Government, version 4.0, October 2020

3.12 Article 98(f) of the Egyptian Criminal Code provides for prison sentences of up to five years and/or fines of up to EGP1000 ($AU145) for ‘exploiting and using religion in advocating and propagating extremist thoughts with the aim of instigating sedition and division or disdaining and contemplating any of the heavenly religions, or prejudicing national unity or social peace’. Articles 160 and 161 proscribe various acts connected with religion, including disturbing religious ceremonies, violating the sanctity of religious buildings or cemeteries, printing adulterated versions of holy books, or imitating religious ceremonies for the purpose
of ridicule.

3.13 Courts of general jurisdiction (see ‘Judiciary’) hear defamation of religion cases. While the
Misdemeanour Courts hear most cases, the Criminal Courts may have jurisdiction if the charge is serious enough to involve a potential term of imprisonment. It is common for cases to last over a year, and for proceedings to be postponed repeatedly. The Public Prosecution Office places charges, which may occur after a lawsuit is filed, a private citizen files a complaint, or the state itself files a case. A conviction under Article 98(f) can result in a prison sentence of up to five years, and/or a fine.

3.14 Before the 2011 Revolution, defamation of religion cases were rare. The number and frequency of charges rose considerably under the Morsi government, and this trend has continued under Sisi. A January 2015 decree permitted the government to ban any foreign publications deemed offensive to religion, and Article 98(f) has been used against an increasingly wide range of groups across the country, including atheists, Christians (including converts from Islam), and artists. The increased use of social media has reportedly been a contributing factor in the rise of such cases: more people have had visibility of potentially
controversial material, and so the number of complaints has risen accordingly.

3.15 According to the US Commission on International Religious Freedom (USCIRF), there were 15 known ongoing cases and investigations under Article 98(f) in 2017, an increase from 2016. Many of the cases involved expression on social media. The majority of charges filed have been against Sunnis, including a cleric who was sentenced to five years’ imprisonment in February 2017 for questioning various interpretations of Koranic texts on Facebook. The majority of those sentenced to prison terms, however, have reportedly been non-Muslims.

3.16 DFAT understands that those accused of blasphemy rarely have an adequate defence counsel. Penalties include fines and/or imprisonment ranging from six months to five years. In some cases, families have reportedly had to leave their homes due to threats received because of defamation of religion cases.

[Ms B]

[Ms B] told me that she was baptised in the Coptic (Orthodox) Church soon after birth and then joined the Evangelical Presbyterian Church in Egypt when she was [age] or [age] years old. I put to her that the Evangelical Presbyterian Church appeared to be alive and well in Egypt. I asked her if her church in Egypt, being evangelical, had adopted any pragmatic approaches to the risk of being found to insult Islam (under section 98(f) of the penal code) or given members like her guidance on how to avoid danger of arrest in the course of fulfilling their mission. She did not answer my question on its point: she said, “There are so many cases.” She said that some of her colleagues had moved to [other countries]. She referred to beheadings and said, “I believe in Deliverance.” She then referred again to having evangelised for around five years in Egypt before coming to Australia. She said that there were “many times” when people saw her work in public places and threatened to call the police. I asked her if the police ever arrived and she said she always ran away before the police arrived.

[Ms B] then said something to me that contradicted earlier evidence: she said that during her conduct of church-organised social activities, she would to people and say “Jesus is God” whereupon they would call the police. This contradicted evidence given to the previously-constituted Tribunal to the effect that she and her fellow (Anglican) [Group 1] workers evangelised “under cover,” due to evangelism being essentially illegal, and that they were careful not to mention Jesus’ name.

I asked [Ms B] to tell me what her church in Egypt instructed her, in the circumstances, to do or not to do. I asked her what policy her church adopted in order to minimise the chance of its members suffering harm. In reply, she said something about what the Bible tells her. She then talked about what would happen if she mentioned to a Muslim that Jesus is God. I asked her if she was answering my question with speculation and she said, repeating earlier evidence, that “some people” in the past had asked her to say who her God is and when she told them, they threatened to call the police, whereupon she ran away.

I took [Ms B] back to the point of my question, being what her church had to say to her and its other members about operating within social and legal realities in Egypt. In reply, she said, “We reported to pour [church] leader.” I asked her what her church leader had said in response and she said, “We told him about people threatening to call the police.” I asked her again what her church leader said or did, and she said, “I tell [the] leader and what he does we don’t know [so] we keep doing what we’re doing. It struck me as odd, in the claimed circumstances, that the prospect of church members being prosecuted, once disclosed to church leadership, prompted no two-way discussion and no church guidance at all. I tried again to ask [Ms B] if her church had ever given any guidance about navigating Egyptian social and legal realities while evangelising. In reply she said, “We just have to talk about Jesus.”

1. Referring to videos seen on YouTube[4] and to other material,[5] I put to [Ms B] that evangelical churches are nevertheless reported to operate evidently viably in Egypt. For example, the World Council of Churches (WCC) gives the following description of the Evangelical Presbyterian Church in Egypt:

   Founded in 1854 by American Presbyterian missionaries, the Evangelical Presbyterian Church of Egypt became autonomous in 1926 and has since carried on the tradition of serving the local communities through countless social, educational, medical, evangelistic and mission programmes. At the forefront of education and inclusivity in Egypt, the Synod of the Nile founded the country's first primary schools for girls, for students with special needs, and vocational training centres ranging from secretarial work to dairy farming. Inheriting 13 American mission schools, the synod now operates 23, in addition to 37 schools for all ages administered by local churches. Members of the Synod of the Nile are credited with co-founding Egypt's two leading academic institutions, Cairo University and the American University in Cairo, while training pastors from across Africa and the Middle East at the Evangelical Theological Seminary of Cairo. The seminary reforms itself to this day to meet the demands of mission and pastoral leadership amidst a diverse geographical, socio-economic and religious constituency.

   "The Whole Gospel to the Whole Person" reminds all church members of their great privilege and responsibility. This mantra describes the newest training programme for lay ministers working in hospitals, youth centres, nursing homes, hostels, orphanages and retreat centres across the country, struggling for quality and dignity of life for Christians and Muslims alike. The church runs three hospitals and four orphanages. Youth centres have become a vital part of the life of the church; there are five in Alexandria, one in Port Said and several others in different places in Egypt. Working with the poorest of the poor, the Coptic Evangelical Organization for Social Services represents one of Egypt's largest development organizations addressing rampant illiteracy, women's rights, sexual education, industrialized urbanization and tolerance. The Synod of the Nile was among those that initiated the inclusion of the Orthodox and Catholic churches into the Middle East Council of Churches, and continues to be a voice for ecumenism. It hosts an inter-denominational dialogue with the Episcopalians and Lutherans, in which it is hoped to include the Coptic Orthodox Church in the near future. The church is also running two programmes for Christian-Muslim dialogue.

   [4] “Worship with Heliopolis Evangelical Church in Cairo, Egypt (sermon in Arabic),”

   [5] “Evangelical Presbyterian Church of Egypt Synod of the Nile,” WCC website,

2. The WCC lists the Evangelical Presbyterian Church in Egypt as a “Reformed Church” with 250,000 members and provides this description[6] of its structure and leadership:

   The Reformed churches generally adhere, with some variations, to a form of ecclesiastical polity in which the church is led by teaching elders (ordained pastors) and ruling elders or presbyters (lay persons) who are organized in various "courts".

   [6]

3. On this information, it appears that the Evangelical Presbyterian Church in Egypt might be evangelical in name only and more like a Protestant church. This impression is strengthened by [Ms B] having told me that she did not know of any Pentecostal missions in Egypt while she was there. Meanwhile, I note, [Ms B] previously claimed that the activities she performed in the community were organised by the Anglican Church. 

4. [Ms B] said that, if asked her beliefs, she will always say that she is a Christian. She said that if a Muslim or anyone else asks her to deny her faith she will proclaim it even in the face of death. She said she naturally preferred, however, not to be put in such a situation notwithstanding that she would only ever proclaim the truth to such a person. Hearing again of the risks she claimed to face, I asked [Ms B] again how Christian churches manage such an issue in Egypt, and she said, “I’m not sure how they do it. It’s about me now, not the churches. Our names [[Mr A]’s and her own] are on [the] wanted list at the airport.” I put to her that she had just digressed from the point of my question.

5. I asked [Ms B] for information about how her church and her Christian colleagues had fared in Egypt after her departure. In reply, she digressed again: “They know I’m here. They know about [[Mr C]].” She said she had herself told her friends about the latter.

6. There was a discussion at the hearing about whether laws curbing or banning evangelism are the same as banning a religion. At the very least, it seemed to be a freedom of speech issue. However, I asked [Ms B] if it was understandable to feel one’s beliefs are insulted if (even well-intentioned) evangelism leaves a non-Christian feeling as though he or she has been told his or her religion is unworthy. In reply, [Ms B] said that if such people experience something good from her evangelical activities, they will say they want to hear more; hence she did not answer my question on its point. When, again, I drew her attention to this pattern in her responses to my questions, she said that most people witnessing her evangelism will be offended, leaving her liable to be charged.

7. I put to [Ms B] that section 98(f) is a generally applicable law adjusted and appropriate to an arguably legitimate national objective of maintaining peace between Egypt’s different religious groups. [Ms B]’s position was that the law is exploited disproportionately by Muslims against Christians. She said it allows for the Shari’a penalty whereby Christians can be tortured and killed. DFAT reports differently, saying the penalty can be a fine and/or five years in jail.

8. I asked [Ms B] to be specific about how many times people had called the police after encountering her; she said “many times.” She said she could not number how many times this had happened, but confirmed that it had happened in public places. I asked her again what alternative practices her church had, if ever, recommended; she said she and her group used to start with sport activities and then talk about Jesus. Here, again, she did not answer my question on its point, leaving the impression that she evangelised in a social vacuum, as it were, in contempt of the law, with no methods for self-protection or learning from experience. I asked her what had her church learned from her constantly having to flee angry citizens and all the police officers they had called, and she said she did not know how the church dealt with it and that for her own part, she just kept on doing what she did. On this evidence, she did not adapt any methods for self-protection or learning from experience either, doing the same dangerous things for five years as though in a social and legal vacuum.

9. I put to [Ms B] that it did not sound as though her church in Egypt had ever communicated with its members about this arguably important issue. I put to her that if all the church’s outreach projects like this ended with people calling the police, sooner or later the church would acknowledging it was getting “nowhere” and discuss alternatives. In response, [Ms B] said that Egyptian law prevents her church from doing anything. I asked her if her church had never adjusted its approach to outreach activities to lessen the risk of harm to its members, and she said she did not know because she had left Egypt (in 2015). This response did not strike me as satisfactory, as there would have been plenty of time between consecutive “sports activity” days for discussion to lead to feedback from the church about harassment from local Muslims.

10. I asked [Ms B] if she still has church friends in Egypt and she said she does via social media texts and SMSs, but never talks about this topic. I asked her why she did not discuss it, as any information she might receive back might be relevant to her spiritual mission and her PV application. In reply, she said she does not really think about Egypt any more.  I asked her if her friends in the Egyptian church were still doing what they had been doing in 2010-2015 and she said, “Not much.” I put to her that by this evidence she did discuss the evangelism topic with them. She said she did not discuss much with her friends. I asked [Ms B] if her friends in Egypt had abandoned evangelism and she digressed to talk about friends who had moved to [other countries]. I asked her to talk to me about the friends still in Egypt with whom she was in touch via social media, and she said that the people in Egypt with whom she communicates are family members who are not evangelical. It is my impression that Ms [B] changed her evidence regarding who she stays in touch with via social media.

11. At the resumed hearing, I asked [Ms B] if she had tried to follow-up on the circumstances and experiences of fellow church members still in Egypt. She said that over the years there had been “Hi” and “’Bye” messages with friends but no contact with the “big group.” I asked her what had happened to her church friends still in Egypt, and she said that they know her circumstances, that she is not in touch with them and that her situation is different because of [Mr A]’s problems with the MB. Referring [Ms B] back to her “Hi and ’Bye” chats with church friends back in Egypt, I put to her that there was no evidence as yet that that any of them have ever come to potentially relevant harm. In reply, [Ms B] said she does not contact everyone and, in fact, only ever contacts the friends who have left for “overseas.” She said they had left Egypt because they had previously been harmed.

12. I reminded [Ms B] and her adviser that I had remarked how potentially helpful it might be in this case to gather details about the circumstances of church colleagues, still in Egypt, who had had experiences similar to those of [Ms B]’s back in Egypt. In reply, [Ms B] said that this application is about her circumstances, not theirs. I reminded her of the potential relevance of her friends’ circumstances as they might reasonably be regarded as similarly situated persons. In reply, she said she had submitted articles about mistreatment of Christians in Egypt. I asked her if there might be any material available that refers to Christian sporting activities (conducted by the Anglican or Presbyterian Church) that ended in calls to police and mass flight by the church members. In reply, she said that Egyptian media would never report such a thing. I put t her that the subject would be of interest to readers of Church websites, Christian human rights websites, Human Rights Watch, Amnesty International. [Ms B] said, “We supplied reports.” I noted that none of these described the kind of activity that she said had caused her so much trouble.

13. I put to [Ms B] that I was concerned during and after the previous hearing at what little thought and guidance her church had evidently shared with its members as a result of the attacks she claimed to have suffered in the course of her evangelical work. The break between hearings had been, if she wished, an opportunity for her to try to gather more information. In response, [Ms B] said she was just one church member doing her work as a Christian. She said she did not contact any pastor. I asked her if she had been able to gather any material outlining church guidance for avoiding social and legal pushback. In reply, she said she had not thought it important because she thought her case was all about her own problems. I put to her that the Court had remitted her matter to the Tribunal on a ground relating to the error of making assumptions about Egyptian citizens based on information that was clearly about foreigners. I then put to her that the country information about foreign missionaries might potentially be useless, and that this was why I had asked so many times at the previous hearing for any information there might be about [Ms B]’s Egyptian church’s policy on evangelism. [Ms B] answered by quoting the Bible on the subject of spreading the Gospel. She talked about never denying her faith. She went on to say that her case is unique because of her brother’s protection claims. This information was not helpful to the particular line of enquiry I had described.  

14. I asked [Ms B] if it was merely bald speculation that a Muslim in Egypt will demand that she deny her faith under threat of death. In reply, she said that the risk is real. She said it is not merely speculative. She then said she was having difficulty understanding what I was asking. I then put to her that she had purportedly evangelised for around five years in Egypt without facing such an ultimatum. In reply, she said that because she is an evangelist and because of her brother’s case, she will be targeted in this way. She then referred me to news articles already submitted about various, individual Christian women who had been assaulted and/or killed. 

15. I asked [Ms B] if she had ever considered relocating, say, to Alexandria. In reply she referred me to the story of the beheaded priest. She also described the killing of a priest in Alexandria by a man who the court found to be insane. She criticised the court’s finding as a way of minimising what she said was a systemic hatred of Christians. I put to her that the killer had nevertheless been taken out of society. This was evidence of willingness and ability on the part of the state to protect Christian society from such harm. [Ms B]’s claims about the priest reminded me of at least two news articles about Coptic priests having been murdered in Egypt in recent years. I asked [Ms B] if these killings had not been localised crimes turning on individual facts and she indicated disagreement with the inference put to her.

16. I asked [Ms B] about [Mr C]’s contrived marriage certificate and associated threats, as this was purportedly one way in which her brother’s case impacted on her protection prospects. She said that According to the orfi Mr [C] had contrived, she was already married to him and now had no rights or entitlements of her own. I asked the date of the orfi. [Mr A] said it was a Friday night two weeks before he left Egypt. He said the date is on the document. I note that the date on the document is Friday 8 May 2015. I asked [Ms B] to confirm the date on which there had, in her words, been an attempt to kidnap her, and she said it had been 5 May 2015.

    [Mr A]

17. I put to [Mr A] that neither the creation nor operation of multiple accounts over which [Mr C] had had power of attorney appeared, on their own, to be illegal. [Mr A] agreed. On the evidence, [Mr C] had exploited a legal loophole. It did seem open to be inferred from the information provided about this practice that [Mr C] engaged in some money laundering. That in itself does not mean he was laundering MB or terrorist funds, bit [Mr A] claims to believe that that was what [Mr C] was doing.

18. I asked [Mr A] why the bank kept assigning him to [Mr C]’s business given his claimed reservations and objections. In reply, he said the bank needed a scapegoat in the event of being caught in an audit and preferred to have a non-Muslim employee for that purpose. Generally, [Mr A]’s evidence of the bank’s need to keep him employed there because he was Christian did not seem to sit with his claims about the Muslim staff at the bank trying to convert him to Islam. 

19. I put to [Mr A] that the evidence of his being granted leave by his boss at the bank appeared to be evidence of good relations between them, arguably contrary to claims about being mistreated and set up as a scapegoat. The manager’s letter indicated that the bank expected him to return but, more than that, it showed the bank was happy in the claimed circumstances to let him leave the country. In reply, he said his manager let him go, advising him, “Think about your life ... think about what you do now and how good [it will be] if you join us and what good will happen to you.” He said he never formally resigned from the bank. He said that by now he will probably have been “fired or framed.” I put to him that this sounded like there was no evidence of his having been framed or scapegoated over the handling of [Mr C]’s affairs or anything else. In reply, he said he had not been ale to find any evidence of his managers or [Mr C] having been charged or “condemned.” The last he heard, he said, was his boss emailing him in 2016 to tell him that he had turned the tables on them all and run away. He indicated that in this way, his boss was telling him that he, the boss, and perhaps others in the bank had run into trouble. I asked [Mr A] if that 2016 message had been wise as it had the potential to be forwarded to an authority used against its sender as evidence of his guilt. In reply, [Mr A] said that the message was not as specific as all that. He then said, “I’ll be tortured and killed.” Meanwhile, it appeared that he had only ever forwarded that message as evidence in his PV application. He had not, for example, sent it on to the CBE and let the CBE decide how useful or ambiguous it might be.

20. Having observed all of [Mr A]’s research in support of his claims, I expressed surprise at his not knowing if anyone in the bank connected to [Mr C], or [Mr C] himself, had been charged or implicated in matters of fraud or malfeasance. Again, he said there was no way that he could know; then he indicated that he knew for a fact that no-one had been charged or “condemned.” He said they are “all still there.” He said that more recently he had seen a photograph of his branch manager at a work event in which he was still being identified as the [BANK 1] branch manager. He said he had recently seen a photograph of his former customer service manager now holding a more senior position in another bank. He said this was evidence that they had not faced charges at any time.

21. I invited [Mr A] to comment on positions, previously put to him by other decision-makers over time, to the effect that none of the relevant actions attributed to [Mr C] or the bank had ever in fact occurred. In reply, he indicated that he was aware of such positions and said that this was why he had sent more material to the presently-constituted Tribunal. I took this to mean the October 2022 submission and attachments.

22. I asked [Mr A] about the outcome of the audit on [BANK 1]. He said that he did not know what the CBE found because he had been here the whole time. It surprised me he had been able to track down recent photographs of various seniors at the bank and other material but argued that it was impossible for him to know the outcome of the 2015 audit. I put to him that, on the evidence of the bank having been awarded so many times from 2011 to 2018, repeatedly praised as being one of the most reliable banks in Egypt and named one of the top [banks] in 2020, it could be said to have admirably withstood scrutiny. In response, [Mr A] said this must mean that there had been a cover-up. I put to him that it might also be evidence of the bank having always operated with due diligence and within the law. In reply, he said, “The bank can say I was the one to blame.” I asked him about his claim to the effect that he believed that his supervisor never co-signed [Mr C]’s [Country 1] transfer and other “illegal” transactions in 2015. He repeated the claim about his boss having told him that [Mr C] was too “big” a client to disappoint. He said his boss promised to co-sign the transaction(s) later but never did. I put to [Mr A] that the bank appeared, however, to have come through its 2015 audit with a stain. This might mean that contrary to what he “believed,” the transaction might indeed have been co-signed at some stage. Also, although he knew the law prevented funds deposited within three months being transferable offshore, there did not appear to be any evidence before me to say that the bank did not wait; meanwhile, there was abundant evidence of the bank’s probity.

1. I put to [Mr A] that if the [Mr C] transactions lacked second signatures from his senior manager, an auditing entity would rationally consider the senior manager and the bank to be at fault. In reply, he said that his superiors at the bank could easily say they had not been aware of the transactions proceeding without due diligence. I put to him that if they said that to the CBE, then it would likely have been reasonable for the CBE to find and conclude that that it was indeed their job to know about it. There would still have been a black mark against the [BANK 1]. [Mr A] said again that his seniors could easily have said to the CBE that they did not know about the transactions. I put to him that such a situation seemed hard to square with the accolades the bank had received.

2. I considered the possibility that the Egyptian government in 2015 would not have publicised its discovery of [Mr C]’s purportedly illegal dealings and might not have taken him out of circulation, or just kept the whole scandal a secret pending (the potentially uncertain) capture of [Mr A]. Weighing against this, is an abundance of information showing the Egyptian government, consolidating its power in 2015 and 2016, engaged in highly profiled crackdowns on and demonisation of MB members, operations and affiliates, after the ousting of the MB-affiliated Morsi government in mid-2013. In these circumstances, it seemed odd that the CBE audit of the [BANK 1] has not evidently shown anything untoward and that [Mr C], at large somewhere, can still be reached by his old telephone number.

3. I asked [Mr A] if the [BANK 1]’s current high standing might indicate, at worst, that auditors’ concerns about any anomalies in transactions concerning [Mr C]’s banking in 2015, if there were any, might have been regarded as small ones, long since corrected or abated. In reply, [Mr A] said that he would never cease to pursue the matter for the sake of justice and clearing his name. In this way, he suggested that if the [transfers] had not received sufficient government attention he would never cease to try to bring them to light, even the risk, he seemed to suggest, of being imputed by the government to have been an MB enabler. He said the government will not help him bring the bank managers and [Mr C] to justice.

4. Here, it is appropriate to discuss an exchange between [Mr A] and the previously-constituted Tribunal, as it concerns the genuineness of [Mr A]’s claimed commitment to seeing  [Mr C] and various bank managers and supervisors prosecuted. The previously-constituted Tribunal asked [Mr A] whether, in the four or more years he had been in Australia, he had reported [Mr C]’s alleged financing of terrorist activities to any Australian authorities such as AUSTRAC. In reply, [Mr A] evidently said he had not done so as [Mr C]’s activities had not involved Australia. The previously-constituted Tribunal put to [Mr A] that countries shared information with each other, and that with President Sisi having taken power after the ousting of the MB-linked government it seemed reasonable to believe that had [Mr A] any genuine concerns about terrorist financing in Egypt he might have put them before an appropriate Australian authority. In reply, [Mr A] said he had not know about this, adding that he had  reported his bank’s dealing with [Mr C] in Egypt. He then evidently said that President Sisi was not really serious about targeting the MB in any event. The previously-constituted Tribunal put to [Mr A] that it seemed strange in the claimed circumstances that, after four and a half years throughout which he had believed himself to have been forced into acts of possible terrorism financing case in Egypt, resulting in his potentially being targeted by supporters and opponents of such activity, he had not reported the matter to any Australian authority. In response, [Mr A] said that no-one had told him that he needed to report it. The previously-constituted Tribunal then put to him that if he had been sufficiently self-motivated to report the matter to the Egyptian authorities, had been dissatisfied with the outcome and yet remained dedicated to seeing justice done, he might not have needed to be told what to do by anyone else. [Mr A] then said he did not believe that the Australian government could do anything with the information.  The previously-constituted Tribunal put to [Mr A] that his oral testimony was the only evidence about the questionable transactions at the [BANK 1]. [Mr A] said that there were emails from the Bank’s compliance manager to bank staff about the imminent audit in 2015.

5. [Mr A] claimed to the previously-constituted Tribunal that he received no reply from the CBE after submitting his complaint to it in 2015. He said he had left Egypt quickly, that his work email password had soon expired and that, although he had a personal email address, there had been no contact from the CBE there. Asked whether he had contacted the CBE to provide them his Australian contact details, he said he had been scared and had not been thinking straight, but believed that he had already given sufficient contact details to the CBE. Asked why he had not kept in touch with the CBE after coming to Australia, [Mr A] evidently said that anyone living in Egypt all their lives would be scared of contacting Egyptian authorities. He said he knew to be no confidentiality in Egypt and no protection for whistle-blowers there. He said he had reported the [Mr C] matters to the CBE and left it for the CBE to take matters form there. Central Bank and they should take over. [Mr A] told the previously-constituted Tribunal he had not followed things up with the Central Bank because he feared they might want him to return to Egypt to be interviewed, whereupon he would be killed by the MB. Meanwhile, in the claimed circumstances, he had given no attention to whether the CBE really wanted to interview him, let alone in person in Egypt, and had not received anything from the CBE to suggest that such an option was even remotely on its mind.

6. [Mr A] evidently contacted Austrac after the hearing before the previously-constituted Tribunal. The evidence is in a printout of an exchange of emails between 24 February and 20 March 2020. [Mr A] evidently used a pseudonymous email address. He evidently provided Austrac with [Mr C]’s name, two [BANK 1] bank account numbers pertaining to the later and some vague information about his address and businesses. He did not appear to have provided even a mention about [Mr C]’s “power of attorney” over a range of other family members’ and supporters’ accounts in his emails to Austrac. He did refer to [Mr C] having colluded with the “bank manager” and “customer service manager” to “siphon out foreign money to help what I believe would be Money laundering that may have been used for terrorist activities, especially [since] [Mr C]’s son is wanted by the Egyptian government.

7. The previously-constituted Tribunal also noted that [Mr A] had evidently worked at [BANK 1] under discrepant job titles, his email signature block identifying him as a “[occupation]” which appeared different from his claimed position as “[Manager].”

8. At the hearing before me, [Mr A] indicated that he had heard nothing back from Austrac since first contacting that body. He offered to contact Austrac during the hearing to prove that he had contacted and to give Austrac all the information he had previously given again. I did not think this would be good use of Tribunal hearing time. [Mr A] had already provided evidence of having contacted Austrac in the past.

9. [Mr A] told me that [Mr F] sent him a message via [Social media] Messenger soon after the time he contacted the CBE. I recall he said Austrac, in what I regard as an inconsequential slip of the tongue; the claim makes more sense if he meant to say CBE, as the date of the message copied and submitted is 6 June 2015. He indicated that he did not believe this to have been a coincidence. He suggested that the message might have been an alarmed response on [Mr F]’s part to investigations that might have been instigated after Austrac received his email.

10. I asked [Mr A] about his claim to the effect that he might have come to the attention of authorities as a potential MB enabler. I asked because, throughout his evidence, [Mr A] evidence about the Egyptian government’s attitude to the MB seemed confused. He said that [Mr C] is probably untouched to the law because the Sisi government is not serious in efforts to eradicate the MB’s influence in Egyptian society. On the other hand, he said the government will not hesitate in prosecuting him as an MB enabler. I asked him if the MB has not been on the backfoot, as it were, for several years since the Morsi government was ousted, and he said it is more powerful than ever. I referred to widely circulated news stories about arrests and trials of MB members and suspected MB terrorists in Egypt over the years. [Mr A] dismissed this information on the basis that many had received the death penalty and had not yet been executed.

    Post-hearing

11. The applicants’ adviser sent the following submission after the hearing:

    In the resumed hearing held on 12 January 2023, you asked the applicants to make their closing oral submissions in a written form.

    Below submissions are prepared on the applicants’ behalf with the view that there is no s424AA issue. These submissions, observations, therefore aim to discuss the exchanges between the Tribunal and the applicants.

    First applicant

    • Central Bank Audit

    • Manager promotion

    1. The applicant answered, to questions from the Tribunal, that the audit, claimed, initiated by the Central Bank of Egypt was fruitless with no further action taken against the first applicant’s bank and that his manager has since been promoted. The applicant asked the Tribunal to infer that he is now being set up as the sole responsible person for the claimed fraudulent activities at his bank i.e. being made a fall guy to be dealt with upon his return to the country.

    2. The Tribunal, on the other hand, adverted to an alternative inference to be drawn. That was that there have been no such fraudulent activities at his bank as claimed.

    3. The beginning point is the applicant’s candidness with the Tribunal which, supported by evidence including the second applicant’s, should favour and support his version of event[s].

    4. Then, we respectfully submit that there is also a third possible inference to be drawn. That is that his managers were able to convince the Central Bank auditor, one way or another, that the applicant was acting alone, and secretly, on his own accord and interest without the knowledge of his managers, therefore placing full responsibility on the applicant. The Central Bank auditor then proceeded to close the investigation against the bank. The Bank then, whilst satisfied with the result, prompted the applicant’s manager.

    5. The critical question is [how] that translates for the applicant. As he explained at the hearing, and it is a reasonably plausible explanation, there is a real chance for a potential criminal investigation for supporting terrorism activities or assisting an individual supporter of a terrorist organisation to the same effect.

    6. Furthermore, considering the applicant’s version of event[s] within the context of [Mr C] ’s interest in, and forced marriage with, the second applicant makes his claims even more plausible. The question to be asked is what the reason, reasons, was for [Mr C]  to come after the first applicant’s sister. We submit that that makes it more plausible the first applicant’s claims of [Mr C]  fraudulent activities channelled through the first applicant’s bank.

    Convention [s.5J(1)(a)] reasons

    7. As discussed briefly at the hearing, for the applicant to be an honest banker, and/or a whistle-blower for that matter, his Christian faith plays a significant role in whatever he does in his life, including his work. Being an honest Christian is an innate and immutable part of his character that has its roots in his Christian faith. The applicant’s religion in a Muslim country is the reason for him being targeted as the weakest link to be discriminated against and blamed for the development, claimed, at his work.

    8. Moreover, the applicant is to be considered a member of a social group of Christian bankers in Egypt standing against fraudulent activities and corruption. That will further fit the applicant within the five elements of the convention reasons.

    9. Furthermore, by way of thought and beliefs as a Christian living in a Muslim country rule by Islamic features, the applicant’s way of thinking is inherently political. That means whatever he does, whether in his daily life or at work, would have in it a trace of his political view, opinion, which plays a significant role in his decision making.

    10. Seeing it that way, his action, claimed, at work has carved in it his underlying political opinion against the Islamic rules which can be deducted from a political fight between the current Egyptian government and the Muslim Brotherhood, or [Mr C]  as an individual for his political gain. If even, we consider that that individual does not have any political interest in what he did, or does, his mere action of assisting and/or financing a religious-political organisation can be inferred as political. That makes the first applicant’s action against [Mr C]  political because of his religion beliefs. It is therefore submitted that the first applicant’s fear of harm, persecution and/or prosecution potentially, has further its roots in convention reasons.

    Second applicant

    Issues

    • Was there any guidance, booklet or pamphlet of such, for the youths at church on how to promote the Christianity.

    • Any information about the well-being of those remain in Egypt.

    11. The Tribunal put to the second applicant a question as to the existence of any written “guidance” or orally given for the youths, including the second applicant, when they embarked upon preaching Christianity. The second applicant said at the hearing that she was not aware of any written guidance for the manner in which she, and other youths from her church, preaches Christianity. Whilst there was no written guidance for a good reason, and in light of their team leader’s general direction, we submit that that should not be taken as concrete measures for the team members, including the second applicant, to strictly follow. That is because, we submit, it depends almost entirely on their individual characters.

    12. It is submitted that what any individual team member, including the second applicant, may have, or may have not, done depends on their individual characters. For example, as the second applicant explained at the hearing, and her statutory declaration of 18 Oct 2022 before the Tribunal, her two other team members have already left Egypt and sought, and recognised, refugee in [other countries]. That is whilst there may be other members of their team who still remain in Egypt and continue the same line of work.

    13. Whether or not a) those team members face any retribution, or persecution of any kind or b) how do they undertake their tasks are unknown. More importantly, the degree of their devotion to Christianity, which goes to the extent to which they may wish to take risk, is also unknown. This particularly requires an evaluation of one’s character which is beyond the second applicant’s ability and expertise. Notwithstanding, remaining of a few members of the applicant’s team in Egypt, or any other Egyptian Christian evangelising amongst the Muslim population in Egypt for that matter, should not be given any weight as to the measurement of a safe environment within which those individuals perform. Because it goes to the degree of devotion to Christianity any individual character has in working in such environment.

    14. For the applicant where Christianity is a deeply innate, and immutable, characteristic of her character, she did what she believes are her religious duties. She would do the same if she forcefully removed to her country of origin. However, we respectfully submit that being a true and devoted Christian, committed to her religious duties, should not be seen, or taken, as to the extent to which one must sacrifice his or her life when facing persecution or prosecution for that matter. In this matter, we submit, to have such expectation from the second applicant to stay in Egypt and face potential persecution, or worse, only because she is a devoted Christian would be an unreasonable, illogical or even irrational expectation.

    Conclusion

    15. We submit that in light of all evidence, and the circumstances of this case, before the Tribunal, the correct, preferable and fair decision is for the Tribunal to remit the decision under review to the department with a proper direction as to the satisfaction of s36 (2)(a)&(aa) of the Migration Act 1958.

    [footnotes including citations and references have been removed to avoid reader confusion with the Tribunal’s own footnotes in this decision]

12. I am particularly interested in the adviser’s submission at paragraph 11 above to the effect that:

    Whilst there was no written guidance [to church members about how to handle evangelical and proselytising matters] for a good reason, and in light of their team leader’s general direction, we submit that that should not be taken as concrete measures for the team members, including the second applicant, to strictly follow. That is because, we submit, it depends almost entirely on their individual characters.

13. The submission refers to a statement from [Ms B] of even date, but none has been located. I can imagine the submission is suggesting that evangelical churches would be reticent to put into published words some policies on this issue, but my questions to [Ms B] were not merely about written policy; I was very explicit in asking her what her church leaders discussed with her orally. The submission refers to church leaders’ “general direction[s],” whereas [Ms B] was not even able to articulate any. The final sentence is written as though summarising church policy, but [Ms B] herself took me to no discussion in which any such policy was discussed. She repeatedly said she did not know what her church leaders did or thought in relation to the topic of evangelism.

14. Relevantly, I have noted that in their original PV application form both applicants called themselves orthodox (and evangelical) Coptic Christians. I noted in particular that evangelism is a central issue in [Ms B]’s claims. I note that for his own part [Mr A] has only claimed to have been Christian, which is to say that he does not claim to be or have been a proselytiser, although he did say that he attracted a negative profile in the workplace for resisting conversion to Islam and also declining even to join in Muslim activities such as group prayer.

15. Finally, there is the discrepancy, observed above, between the “[Group 1]” program having been operated by Anglican Church or the Evangelical Presbyterian Church in Egypt. As far as I can see, this is a discrepancy between what [Mr A] calls [Ms B]’s church in Egypt and what she herself calls it. I do not give any negative weight to the discrepancy as the church [Ms B] claims to have worked for was not [Mr A]’s church. He may well have made an innocent error in naming the particular Protestant church to which she claimed to have belonged. I am prepared to regard the Evangelical Presbyterian Church in Egypt as the church [Ms B] joined in Egypt in or around 2010. On the evidence before me, I find that it is a Protestant Reformist church, along the lines of its sister church in Europe and elsewhere, and not an evangelical or proselytising church as such. In this light, it is hard to see how [Ms B]’s claimed secret evangelical activities, such as performing Biblical skits, preaching Christian messages and even, if only in some of her evidence, saying “Jesus is God,” would have been authorised by or conscionable in the eyes of the Evangelical Presbyterian Church in Egypt, which has evidently won a hard-earned place of security and respect in Egypt over a long time. 

    Findings in relation to s.36(2)(a) of the Act

106.   Ultimately, I do not accept that [Mr A] is implicated, or has been portrayed as being involved, in any fraudulent transactions at the [BANK 1]. I give no weight to the CBE having audited the bank in 2015. I find that the appearance of nothing untoward having been found or reported is far more logically explained by the bank having conducted itself at least over the last decade with probity and due diligence at all its branches including the one in [Location 1]. I do not accept on the evidence before me that [Mr A] approached the CBE to investigate the bank. I consider the visit by CBE inspectors to the bank in 2015 very likely to have been routine. I give no weight to [Mr F]’s message asking [Mr A] to call him. I given no weight to the SMS from the bank manager Mr [E]. I give no weight to the claims about various colleagues trying to add [Mr A] as “friends” on [Social media] for hostile purposes. I consider all these claims about hostile use of social media to be embellishments. I give no weight to claims in this case about [Mr A] having been attacked in front of his house and reporting the matter to unresponsive police. I give no weight to the claims about the attempted shooting of [Mr A] and [Ms B] on 22 May 2015.

107.   I am prepared to accept that [Mr C] sent his children to [School 1] where [Ms B] just happened one day to be conducting sports activities. There are possibly lots of MB members who themselves had non-denominational or secular educations. I am prepared to accept that [Mr C] sent his regards through [Ms B] to [Mr A]. However, on the evidence before me, I give no weight to the suggestion that any of this was sinister or intimidatory.

108.   I note that [Mr A] has not claimed a fear of being persecuted arising from his having contacted Austrac in confidence. I give no weight to [Mr A] having pseudonymously provided information and accusations about [Mr C] to Austrac.  

109.   I do not accept as truthful [Mr A]’s claim about how he would and will never let the matter of fraud at the [BANK 1] rest. He spent years in Australia doing nothing about exposing the fraud in Egypt while paying, by contrast, close attention to assembling his PV application. He gave an array of reasons to the previously-constituted Tribunal as to why he had done so little, in circumstances where he claimed he would never let the matter go, but ultimately I do not believe them. I find that [Mr A] will not pursue this matter in Egypt because it is not based in fact.

110.   I have read and considered the independent reporting relating to the treatment of Copts in Egypt, including reports of vandalism, assault, murder and arson. However, on the evidence before me, I am not satisfied that being Christian gives rise separately or cumulatively to a real chance of [Mr A] being persecuted in Egypt in the reasonably foreseeable future.

[Ms B]

111.   I accept that [Ms B] was also a Coptic Christian in Egypt. I note she called herself “Christian, Coptic Orthodox and Evangelical” in her PV application. I find that the description of oneself as Coptic Orthodox is in itself evidence of subjection to the guidance of the clergy of the Coptic Church including priests and bishops. This in itself does not rule out involvement in social outreach activities organised by other Christian churches but it is not necessarily compatible with being a member of the Evangelical/Charismatic/Pentecostal movement.

112.   I accept that [Ms B] is a Coptic Christian who involved herself with a Protestant church in Egypt and its youth outreach project “[Group 1].” I accept that this church was the Evangelical Presbyterian Church in Egypt. I am not satisfied on the evidence before me, however, that this church was “evangelical” in the sense of proselytising to non-Presbyterians, let alone non-Christians. It is evidently not evangelical in a Charismatic or Pentecostal sense. I find that this church is a Reformist church in the mode of its European and other branches. I accept that the “[Group 1]” project involved setting up and running youth sporting activities. I am not satisfied, on the evidence before me, that the church left it to individual “[Group 1]” volunteers to decide how much religious preaching, secret or otherwise, they could add to the events they staged. I find that [Ms B]’s evidence about how little she and her church leaders discussed the sensitive issue of proselytising in Egypt lacks credibility in the claimed circumstances. I also find, on the evidence before me, that whereas one would reasonably expect her to do so in the claimed circumstances, [Ms B] never engaged at any time in a genuine, subjective process of weighing the risk of prosecution, or persecution, with what she might gain or bring to fruition from evangelising in Egypt.

113.   Meanwhile, [Ms B]’s evidence about how many times a Muslim saw her conducting evangelical activities during “[Group 1]” sports days is inconsistent: in one instance she has claimed this happened once, and in others she has claimed it happened “many times.” I certainly do not accept that it happened “many times,” let alone without [Ms B] learning from the experience and adapting her approach along the way. At the same time, the suggestion that there was just one occasion strikes me as fabulated, considering how much of what [Ms B] was doing could supposedly taken in by a mere passer-by in circumstances where the evangelical aspect of the activities was disguised and, according to some of [Ms B]’s evidence not even Jesus’ name was mentioned.

114.   In either of these inconsistently claimed circumstances, a reasonable person would expect the church to have counselled [Ms B] after she reported what happened to her, as claimed in her evidence. I do not believe her suggestion that her church gave little to no guidance in such affairs. Her description of evangelising during “[Group 1]” sports days is one of having operated in a social, practical and factual vacuum. I do not accept that it is truthful. I do not accept that anyone threatened her, let alone by calling the police. I do not accept that she never received guidance or words of caution from her church. In addition, [Ms B]’s evidence is inconsistent regarding whether she ever mentioned Jesus to the youths she was supervising: she has given diametrically opposed statements about whether she and her colleagues ever referred to Jesus during their “[Group 1]” sports day activities.

115.   [Ms B]’s testimony about whether she has remained in touch with similarly situated persons in Egypt was also inconsistent. She did at one stage claim that she seldom stayed in touch with fellow volunteers there. She also said she never discussed the subject of evangelism and its backlash, restricting herself to “Hi” and “’Bye” chat, because she wanted to forget about the troubles she had there. Then, in later evidence she said she only chatted occasionally with the two colleagues who, she claims, were successful in moving [other countries]. I find that if [Ms B] had actually gone through what she claims to have experienced, she would have taken more trouble to monitor any strife her former colleagues might be having in Egypt. I find that she has no relevant, updated information about former colleagues in Egypt because none of them were evangelists. I find she has shown a distinct lack of genuine interest in what happens to evangelists there, especially those in her own church to whom she claims to have been close. I have given some negative weight to this factor.

116.   In light of all of these concerns, I do not accept that [Ms B] has been truthful about having proselytised and evangelised in Egypt. I find that her overall claim to be vocationally evangelical is significantly tarnished by her inconsistency regarding what happened to her in connection with “[Group 1].”

117.   I find [Ms B]’s claim about facing a real chance of persecution in the event of being asked to deny Jesus or the Christian God, or even in the event of merely stating her belief on the divinity of Jesus is based in bald speculation. I give no weight to it.

118.   For reasons given, whereas I accept that [Ms B] was driving her brother’s car on 5 May 2015 when a microbus ran into it from behind, I accept that the other driver behaved like he was blaming her for the accident, I accept that he spoke to her in misogynistic, anti-Christian and other pejoratives, I do not accept that this episode was in any way an attempt to kidnap [Ms B]. As mentioned, her evidence about the number of people who came out of the microbus is inconsistent, her claim about the police officer ridiculing her is unsupported and her suggestion that she was too scared, on [Mr A]’s behalf, to mention any facts supporting the kidnap theory is simply nonsensical. I give no weight to [Ms B] reportedly having told the police officer that the other driver intended to run into her, although I can understand this being the transient observation of a person who had just been insulted and harassed by a person who was the likely person at fault in the collision described. I am not satisfied on the evidence before me that the vehicle collision of 5 May 2015 provides any ground for a real chance of [Ms B] being persecuted in Egypt in the reasonably foreseeable future.

119.   I have already found that I give no weight to the suggestion that [Mr C]’s encounter with [Ms B] at [School 1] was sinister or intimidatory. Also, for reasons already given, I am not satisfied that [Ms B] has been forcibly married to a Muslim, let alone as a means of levering or punishing her brother [Mr A].

120.   All these findings notwithstanding, I am prepared to accept that [Ms B] has occasionally been on the receiving end of pejorative remarks from time to time in Egyptian society due to being identifiable as a Christian. Overall, however, I find that she has embellished the facts to strengthen her PV claim. I do not accept on the quality of evidence before me that she has ever been physically harmed in Egypt due to being a Christian.

121.   I have had regard to all of the independent reporting relating to violence against Christians and damage to Christian property in certain locations and circumstances in Egypt. However I am not satisfied that being Christian on its own gives rise to a real chance of [Ms B] being persecuted in Egypt in the reasonably foreseeable future.

122.   I accept that [Ms B] has joined a Pentecostal church in Australia. I accept that she has involved herself here in the activities that she and her witnesses have described. Since her conduct is conduct in which she has engaged in Australia, I am obliged to have regard to s.5J(6) of the Act:

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.

123.   The Pentecostal church is a Christian church. Given that I have accepted that [Ms B] was a Christian to start with, given her claims to have been involved at least in Christian youth social outreach through sports activities, and given the emphasis placed by her witnesses on shared social activities, I find that I am satisfied that [Ms B]’s involvement in the Pentecostal church in Australia serves a genuine social need and well as providing her with places of worship and learning. Hence, I find her conduct is not solely for the purpose of strengthening her claim to be a refugee.

124.   That said, [Ms B]’s claims to be genuinely evangelical and inwardly impelled to preach gospel to non-Christians are undermined by her lack of credibility about having been an evangelist in the past. I find that she is not genuinely evangelical, notwithstanding her ability to quote passages from The Bible relevant to the topic. I find that she will refrain from proselytising in Egypt not out of fear of being persecuted but out of a lack of genuine interest in doing so.

125.   Overall, I find that [Ms B] is an unreliable witness in this matter.

[Mr A] and [Ms B]

126.   On the evidence before me, I find that both of the applicants, on their own, are unreliable witnesses is this matter. I am not satisfied that either of them face a real chance of being persecuted in Egypt in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.

127. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

Findings in relation to s.36(2)(aa) of the Act

128. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

129. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

130. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

131.   Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

132.   “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

133. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

134.   Accepting that the applicants are nationals of Egypt, I find that Egypt is the receiving country in this matter.

135.   The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.

136.   On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Egypt, there is a real risk that the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.

137. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusions

1. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

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

Luke Hardy
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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