2117179 (Refugee)

2117179 (Refugee) [2023] AATA 3432 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Etienne De Villiers Hugo
CASE NUMBER:  2117179
COUNTRY OF REFERENCE:                   Egypt
MEMBER:James Silva
DATE:28 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 July 2023 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Egypt – Federal Circuit Court remittal – religion – Coptic Christian – societal discrimination and communal violence – brother-in-law converted to Islam – harassment and threats from brother-in-law and extremist associates – several members of extended family granted protection in Australia and several more forcibly converted or disappeared in Egypt – workplace discrimination and dismissal – mental health and treatment – lengthy visa and review processes – credibility – inconsistent, exaggerated, misleading or demonstrably false claims and evidence – delay in applying for protection – lawyer’s advice to focus on another visa application – passage of time – wife and children still living in home area with no harm or precautions – no current information about brother-in-law’s whereabouts – country information – political, economic and social conditions – low risk in major city – request for referral for ministerial consideration not accepted – direct application possible – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [Age] year old man who claims to be a citizen of Egypt.
The applicant most recently arrived in Australia [in] December 2013, as the holder of a visitor (subclass 600) visa. On 14 September 2015, he applied for a protection (class XA) visa. On 30 September 2016, a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act), essentially on credibility grounds.
This is an application for review of that decision.
On 23 January 2020, the Tribunal (the ‘first Tribunal’, differently constituted) affirmed the delegate’s decision. The Federal Circuit Court set aside the decision, and remitted it to the Tribunal for reconsideration. The matter is now before the Tribunal pursuant to the order of the FCC.
For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
CLAIMS, AND CRITERIA FOR A PROTECTION VISA
The applicant is a Coptic Christian who claims to have experienced discrimination in Egypt, and to fear persecution and significant harm if he returns there in the future, due to his Christian faith. He has given prominence to this claim before the current Tribunal.
The applicant claims that his personal and family circumstances amplify the risks he faces if he returns to Egypt. His former brother-in-law converted to Islam, and tried to force his wife (the applicant’s sister) to convert. She came to Australia and sought protection in the early 2000s. The family has been subject to ongoing threats and harassment from that time, from the former brother-in-law and his Muslim associates. These have included a threat to kidnap the applicant’s son in 2013, which prompted the applicant to flee. The applicant claims to fear that, if he returns to Egypt, the former brother-in-law and his extremist Muslim associates will track him down, kill him and punish his family.
The applicant has submitted evidence regarding mental health issues, and concerns about the processing of his application at the primary and review stages. The Tribunal takes these and other factors into account in its overall assessment.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Background
The applicant is a [Age] year old man, who identifies as an Egyptian Coptic Christian.
The applicant gave one residential address in Egypt, at [Address], [Suburb], where he lived until his departure from Egypt in 2013. This is the family home, which the Tribunal also refers to as ‘[Address]’, in a mixed Muslim-Christian neighbourhood in central Cairo. During this review, the applicant explained that this is an apartment building in which various family members (and their respective partners and children) occupy different levels. He claimed that it is unoccupied (for security reasons linked with his protection claims). Family members hold inherited shares; they have not discussed selling or renting it out.
According to his protection visa application, the applicant attended primary and secondary school from [Year] to [Year]. From [Year] to [Year], he completed a [diploma] in [Subject], at an academy in his local area.
The applicant wrote on his protection visa application that he worked as [an Occupation 1] in various companies, from 2005 and 2012; and from June to November 2012 at a [Work sector 1] company named ‘[Company 1]’. From November 2012 to December 2013, he claims to have been unemployed. (These circumstances form part of the applicant’s protection claims, discussed in detail below.) The applicant has given divergent information over time about his past employment; he explained that this was in part due to his reliance on other people to complete his paperwork, and also due to his poor memory and Egyptian employers’ poor record-keeping.
In June 2023, he provided the following details:
§ [Year] - [Year]: Work (two companies, one of them a [Work sector 2] company).
§ [Year] – 2004: Work (two successive companies, in the first as a supervisor from mid-2002 to July 2003).
§ 2004 (September) – 2011 (January): After returning to Egypt, the applicant started a [Work sector 3] workshop, which eventually failed. He also worked part-time as [an Occupation 2]; and from 2008, worked in [Work sector 1] (two successive employers).
§ 2012 (June to December): Work in [Company 1], [Work sector 1] company.
§ Periods of unemployment:
    [Year] – [Year];
    2004 (March to June): visit to Australia.
    2011 (January?) – 2012 (June?), due to the 2011 Egyptian Revolution.
    The applicant implied that he was also unemployed during 2013.
The applicant identified his wife and two children as his immediate family members. He has a son, [Master A], born in [Year] (now [Age] years old) and a daughter, [Miss B], born in [Year] (now [Age] years old). His wife and children remain in Egypt.
The applicant’s parents are deceased. He has [siblings]. [Brothers and sisters] live in Australia[1]. At the time of application, the applicant wrote that one brother, [Mr C], referred to as ‘[Alias 1]’, remained in Egypt. He told the Tribunal that this brother went to Egypt in about 2009, and returned to Egypt occasionally. He submitted a copy of a [Country] permanent resident card for [Mr C, Alias 2] ([DOB]), stating that he had been a resident ([Category][2]) since November 2022.
[1][1] The brothers are [Names, years of birth]; the sisters are [Names, years of birth]. One brother, [Mr C], is currently a [Country] resident. The applicant wrote at the time of application that he was living in Egypt, but told the current Tribunal he moved to [Country] in 2009 (possibly a reference to him visiting his daughter in [Country] from this time). [Mr C]’s name also appears in the form ‘[Alternative transliteration]’, which the Tribunal understands to reflect a variation of the same name. The full name on the [Country] residence car is [Alias 2].
[2] [Country Immigration department reference and URL]
The applicant’s protection claims relate in part to his sister, [Ms D] ([DOB]), who came to Australia in 2001. The applicant claims that several members of his extended family have disappeared (a cousin, the wife of one cousin, and the son of another).
The applicant obtained an Egyptian passport [in] 2002, valid for seven years (2009). He indicated in his original statement that his first visit to Australia was from March to June 2004, to visit his sister. The Tribunal has been unable to locate any record of this visit, but the applicant submitted a copy of his Egyptian passport, which shows an Australian entry stamp dated [March] 2004.
The applicant entered Australia on a further passport, issued [in] 2011, also valid for seven years (2018). He does not currently hold any travel document.
The applicant said that he does not currently have work permission in Australia and has nothing to do. He said that he lives in a granny flat, by himself. As he is no longer eligible for government benefits, he relies on assistance from [Organisation 1] and the Australian Red Cross. He said that he is suffering depression (see below). He has medication, but often forgets to take it. The Tribunal had difficulty eliciting more details as to the applicant’s current activities and means of support, and has concerns about the completeness of the information before it.
Evidence
The evidence before the Tribunal is voluminous, and includes the following relevant material:
To the Department
§ Protection visa application form lodged on 14 September 2015. Attached to this was a statutory declaration dated 14 September 2015, setting out the applicant’s protection claims.
§ Partial photocopies (biodata pages only) of the applicant’s Egyptian passports, one issued [in] 2002, and the other [in] 2011.
§ The protection visa interview (‘Department interview’) held on 13 July 2016, a copy of which is on the department file and which the Tribunal has listened to.
§ The protection visa assessment (‘delegate’s decision record’) of 30 September 2016, which is the subject of this review. The applicant submitted a copy of this to the first Tribunal, with his application for review.
§ The Department file includes materials relating to the applicant’s earlier carer visa application, and an associated Ministerial Intervention request. These do not contain any materials relevant to the applicant’s protection visa application.
To the first Tribunal
§ The review application received on 31 October 2016 has attached to it a copy of the delegate’s decision record.
§ The applicant attended a hearing on 18 December 2019, conducted with the assistance of an interpreter in Arabic and English. His (then) representative [Ms E] was present. His brothers [Mr F] and [Mr G] appeared as witnesses.
§ Submission dated 13 December 2019, summarising the applicant’s circumstances, country information and legal issues. There were also several emails with a large number of attachments, described as ‘extensive information regarding Copts in Egypt’, and ‘predominantly 2019 sources’. The material amounts to more than 950 folios.
   They include press reports concerning attacks against Coptic Christians in Egypt; photographs relating to such violence (some photographs appear to be linked with specific articles, and the source of others is unclear); and a list of weblinks.
   Attached are copies of country information updates prepared by registered migration agent [Mr H] of [Lawyers] on 21 December 2016, 9 April 2017 and 26 May 2017, with a large list of weblinks and attached references, and a list of violent attacks against the Coptic minority in Egypt.
   Materials relating to the Australian Coptic community’s efforts to support asylum seekers, such as general letters of support and public statements, petitions (for instance, through Change.org and reports relating to individual asylum seekers and their families. They include a copy of DFAT’s Smartraveller report on Egypt (as of November 2017 (for which the official advice reads: Reconsider your need to travel’.
§ The Tribunal received a second submission dated 13 December 2019, which contains information about a new claim (recent development), relating to a house fire in 2017.
§ A submission dated 17 December 2019 provides a summary of the material submitted on 13 December 2019, a snapshot of the applicant’s claims, and summaries of two recent favourable AAT decisions relating to Coptic Christians.
§ A general character reference from [Rev. Fr. I], of [Church 2].
§ Medical records.
§ An undated written statement from the applicant, submitted by hand on 3 January 2020.
§ Post-hearing submission dated 10 January 2020.
To the current Tribunal
§ Submissions dated 5 May, 26 May, 31 May and 20 June 2023.
   The submission of 26 May 2023 includes indexed country information that is characterised as showing that Coptic Christians ae subject to significant ongoing and widespread persecution in Egypt.
§ A fresh statement of claims, dated 20 June 2023, with chronology of events and a list of the applicant’s past employment.
§ Letters of support and witness statements:
   [Mr F], the applicant’s brother.
   [Ms J], the sister of the applicant’s sister-in-law.
   [K], resident in Cairo.
   [Mr L], the applicant’s nephew, 14 June 2023.
   [Senior Pastor M], [Church 3], dated 30 May 2023.
   [Senior Pastor N], [Church 4], dated 28 May 2023 (reporting on the applicant’s sister’s [Ms O’s] concerns for the applicant’s safety.
   The applicant’s sister [Ms O] sent an email of general support directly to the Tribunal.
§ Further medical and social welfare documents, set out below.
§ Evidence of the brother [Mr C’s] residency in [Country].
The applicant appeared before the current Tribunal at a hearing held over two sessions, on 1 June 2023 and 13 June 2023. The hearing was conducted with the assistance of an accredited interpreter in the Arabic and English languages. The Tribunal took evidence from [Mr F], the applicant’s [brother], and [Ms J], his sister-in-law’s sister. The applicant’s brother [Mr G] attended the most of the hearing as a support person.
The applicant is currently represented by legal practitioner Dr Etienne De Villiers Hugo, and his colleague Ms Chitra Rangarajan, both of whom attending the hearing.
Country of reference
The applicant claims to be a national of Egypt. He entered Australia on an Egyptian passport, is familiar with that country and has family members in Australia who originate from there. There is nothing to suggest that he has any other nationality. The Tribunal accepts that the applicant is a national of Egypt. This is therefore the country of reference for the purpose of assessing his protection claims.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of claims
When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[3] In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
[3] The Tribunal has before it the AAT’s Migration and Refugee Division , Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re-issued February 2019 at [203]-[204] (UNHCR Handbook). Of particular relevance in this case, given the applicant’s mental health issues, is the MRD Divisions, Guidelines on Vulnerable Persons.
Overall, the Tribunal found the applicant’s oral and written evidence to be problematic, as much of it was vague, uncertain and changeable. It takes into account that he does not appear to have strong presentational skills; that he feels the strain of his separation from family, including feelings of guilt and tension with his wife, and uncertain migration status (see comments under ‘mental health issues’, below); and that he claims to have memory problems.
The Tribunal notes in particular the following aspects of the applicant’s evidence.
§ During the course of his evidence, the applicant directly answered the Tribunal’s questions, but often veered off into additional comments, where the subject, timeline and/or causal link to the rest of his statement was sometimes not immediately clear. Following the hearing, he submitted a consolidated list of the five incidents which he claimed he and his family had experienced in Egypt, with the date, circumstances and relevance. While he implied that this is an exhaustive list, the Tribunal found in his oral evidence mention of other actions that potentially relate to separate incidents.
§ The Tribunal has broad concerns about the applicant’s reliability as a witness.
Some of his evidence was exaggerated and, in the Tribunal’s view, misleading. For instance, he wrote on 3 June 2020: ‘My family (wife and 2 children) are the last sole survivors in Egypt, everyone that couldn’t escape has either been kidnapped or violently killed’. Yet at hearing before this Tribunal, he also stated that his nephew [Mr L] continues to live in Egypt (the applicant’s brother visited him during a return visit from [Country] in 2017), and that the paternal relatives whose close family members allegedly disappeared in 2001-2003 also remain there.
In the applicant’s oral and written evidence, including the summaries of his claims, he tended to blur ‘facts’ (for instance, the alleged kidnappings and conversions set out his initial statutory declaration of 14 September 2015) with scenarios that seemed to be based on suspicions or assumptions. On occasions, the applicant gave the impression that he had drawn on real events that happened to him or others, but exaggerated and misconstrued them to bolster his protection claims.
§ The Tribunal notes, and has taken into account, that the applicant’s presentation style, his thought patterns and/or nervousness at hearing may have influenced the way he submitted his claims to the Tribunal. At the same time, it notes that he has had legal representation throughout this review, and that he was able to resolve some of the Tribunal’s concerns, such as his past employment in Egypt and a listing of the adverse events that he claims to have experienced. Overall, the Tribunal is satisfied that he had ample opportunity to present his claims and evidence during this review.
The applicant’s presentation of demonstrably false claims reinforces the Tribunal’s concerns. In his statutory declaration of 14 September 2015, he wrote: ‘they […] kidnapped my cousin’s wife and the extremist Muslims also converted her into Islam’. As noted in the Department decision record, the applicant explained that [Ms P] was abducted in 2012, after the extremists had confronted him and his [brother Mr F]. The delegate rejected this claim, noting that [Mr F] had been in Australia since November 2009.
The applicant has admitted that this claim was incorrect, at least insofar as the timing of [Ms P]’s abduction, which he now claims took place in 2001 or 2002. He claimed that his representative (presumably a reference to [Ms Q]) had recommended he lie about the timing in order to make the incident seem more recent and impactful. The submission of 23 May 2023 states that he ‘never intended to provide the authorities with incorrect information’, but simply relied on his agent’s advice. The Tribunal acknowledges that applicants may receive advice (whether from agents or others) to exaggerate or fabricate claims to achieve a migration outcome. In the present case, it is not satisfied that the applicant acted under any kind of pressure or duress. It considers that his willingness to advance this false claim reflects poorly on his credibility as a witness, and invites close scrutiny of all his protection claims.
Mental health issues

The applicant provided to the first Tribunal a number of medical documents, indicating some relating to mental health issues. These potentially go to: (a) the veracity of his claims; (b) his capacity at hearing, and the evaluation of his oral evidence; and (c) his future prospects, including if he were to return to Egypt. (Separately, the representative posited that they may also form the basis for Ministerial intervention under s.417.) The applicant and his representative underscored that the applicant’s mental health issues reflect the strain of his uncertain migration status and separation from his family, and his concerns that the Department and the Tribunal have at various times treated him unfairly.
The documents provided to the first Tribunal include the following:
§ Medical certificate dated 15 October 2019, from [Dr R]. This states that the applicant suffers anxiety and depression, which is worsening. It does not provide details of the diagnosis, or treatment. It sets out aspects of the applicant’s circumstances in Egypt (a precis of his protection claims) and his separation from family, and advocates for the grant to the applicant, as well as his wife and two children in Egypt, of permanent residency in Australia.
§ Letter dated 9 January 2020, from [Dr S]. The letter states that the applicant ‘has anxiety and depression precipitated by his separation from his wife and children occasioned by escaping Egypt as a refugee’. The letter goes on to state that he has become forgetful and suffers insomnia. It notes that his social isolation exacerbates these problems. The letter stated that the applicant has started taking a serotonin uptake inhibitor (anti-depressant), on a trial basis. Attached is a copy of a prescription for Prozac, issued on 9 January 2020.
The current Tribunal received copies of the above medical documents, plus:
§ ‘To whom it may concern’ letter dated 12 August 2016 from [Ms T], Counsellor and Mental Health Social Worker, [Organisation 1]. [Ms T] claims to have seen the applicant weekly from April 2016, and refers to the applicant suffering depression and associated symptoms. She links these with his protection claims, and with the conduct of the Department interview on 13 July 2016.
§ A medical letter/certificate for the Department’s SRSS (Status Resolution Support Services), from a [Dr R] (poorly legible), dated 15 October 2019, stating that the applicant is unfit for work from 2014 to 2019, due to severe depression and severe anxiety, diagnosed in 2014, for which he is receiving counselling and anti-depressant medications.
§ Letter dated 23 February 2023 from [Prof U] (both a signed ‘draft’, and a final version), general practitioner and pro bono clinician for [Organisation 1] Clinic. It relates to the period from early 2022 (when the applicant’s access to Medicare ceased). [Dr U] noted that the applicant completed a PCL-5 form in Arabic in August 2022, and had ‘an extremely high’ score. [Dr U] wrote that since his ‘diagnosis’, the applicant had received psychological and pharmacological therapies. He has improved, but faces challenges due to ‘the ongoing uncertainty about his future visa status’. The Tribunal notes that the PCL-5 is a 20-item self-report measures that monitors symptom changes, screens individuals for Post-Traumatic Stress Disorder (PTSD), and is used to make a provisional PTSD diagnosis. It is not normally used as a stand-alone diagnostic tool.[4]
[4] International Society for Traumatic Stress Studies, PTSD Checklist for DSM-5(PCL-5),
-   [Dr U] did not provide details of any pharmacological therapies. However, the applicant later provided a copy of a prescription for the anti-depressant Sertraline, dated 25 May 2023.
-   On 25 July 2023, the applicant submitted an update from [Prof U] dated 21 July 2023. This does not refer to any further consultations, but amplifies the previous report and gives further background information.
-   The report notes that the applicant’s ‘history of trauma includes threats to his personal safety and ongoing fears for the safety of his family, the witnessing of terrorist events and kidnapping of family members’. It goes on to state that ‘further traumatic events have occurred to him during the process of his application for protection’. It highlights the applicant’s ‘shock of being told (incorrectly) that his wife and children had been granted visas’[5] and posits that this and similar events (such as the ‘adversarial review process’) ‘have added to the perception of ongoing threats to himself and his family’s safety, exacerbating his illness’. The Tribunal understands this to mean that the visa processing itself has triggered the applicant’s fears (and potentially caused him to recall incidents he had not previously mentioned).
[5] This is an apparent reference to the discussion at the Department interview, when the delegate thought that the applicant’s wife and children had also been granted visitor visas in September or December 2013, and drew adverse inferences from the applicant’s travel to Australia without his family members (particularly his son, who had allegedly been the subject of threats),
-   [Prof U] refers to the DSM-5 diagnostic criteria, and goes on to state that the applicant exhibits the criteria for a PTSD diagnosis, including (highlighted): ‘He has an inability to recall key features of traumatic events due to dissociative amnesia […]’.
§ [V], a counsellor at [Organisation 2][6] prepared a report dated 25 May 2023 based on counselling sessions from March 2022. Although these are nominally fortnightly sessions, [V] wrote that the applicant has attended on six occasions, and has been ‘extremely challenging to engage in counselling’. [V] recorded a range of symptoms, including insomnia, low mood, irritability, cognitive distortions, and memory and concentration difficulties. Based on the applicant’s completion of the Harvard Trauma Questionnaire (HTQ) and the Hopkins Symptoms Checklist 25 (HSCL-25), [V] noted symptoms associated with PTSD, very severe anxiety, complex traumatic grief and major depression. Like the PCL-5, these are self-reporting questionnaires used for screening, but do not form the basis for formal diagnoses. The applicant received counselling and a referral for an EEG (see below), but there is no evidence of medication or other specialist treatment.
[6] [Full name of Organisation 2]
§ A functional electroencephalogram (EEG) report, based on a recording dated 2 November 2022, found that the applicant had results indicating ‘over-arousal arousal regulation issues’.
§ On 20 June 2023, the Tribunal received a report dated 15 June 2023 from [Ms W], trainee specialist at [Hospital] Psychiatry Service. This stated that the applicant had presented at the [Hospital] Emergency Department with an [Organisation 1] case worker that day.
-   He initially presented with suicidal ideation, linked with his recent court presentation (presumably, the Tribunal hearing held two days earlier, on 13 June 2023). It recounts his concerns about his migration status, his lack of work permission and his social isolation. It records that he has ‘some depressive and anxiety symptoms’, but adds that this is ‘situational’ (part of the text appears to be obscured, but it may read ‘highly situational’).
-   [Dr W] notes that the applicant was initially offered inpatient voluntary admission, but it was determined that this was not beneficial. The applicant was offered, but declined, a prescription for Sertraline, an anti-depressant. [Dr W] concluded that community-based support was appropriate.
-   The report notes that the applicant is taking Panatoprazole (a medication to reduce stomach acid) and Paracetamol. (Although the applicant presented a copy of a prescription from Sertraline from [Prof U], dated 25 May 2023, [Dr W]’s note merely mentioned that the applicant declined her offer to restart him on sertraline or a similar medication).
§ In her letter of 21 July 2023 (referred to above), [Prof U] wrote that the applicant was still experiencing the symptoms of PTSD at the time of his most recent hearing, noting that he is ‘suffering the effects of long-term repeated trauma’, and that she recommends a trauma-informed approach to interactions with him. In relation to the hearing on 13 June 2023, she considered it ‘very likely that he was unable to recall events accurately and would have been triggered into an acute stress response.’
-   [Prof U] added: ‘When I saw him several days after the hearing, he was suicidal and agreed to a voluntary admission to [Hospital]. We are continuing to provide him with treatment and support’.
-   This appears to be a reference to the same event as referred to by [Dr W] at [Hospital]. It appears that there was in fact no hospital admission. [Prof U]’s letter does not specify what treatment the applicant is currently receiving.
Relevance to credibility assessment of past claims: The Tribunal notes that, while the authors of these documents refer to the applicant’s protection claims, this is unsurprising given that the applicant appears to have sought consultations around the same time as critical points in his application processing (such as around the time of interviews and hearings). The authors refer to the applicant’s circumstances in Egypt as related to them. For instance, [V] stated, seemingly as fact, that the applicant ‘suffered from severe multiple and complex history […] in Egypt’, and ‘threats to his life by Islamic extremists’. However, there is nothing to suggest that the authors of these letters evaluated the applicant’s statements critically, or that they have the expertise (such as access to country information) to do so. In the Tribunal’s view, these letters are of minimal weight in assessing the veracity of the applicant’s claims relating to events in Egypt.
Conduct of hearing and evaluation of oral evidence: The letters variously refer to the applicant’s anxiety and depression, confusion and some memory loss (among other issues). The Tribunal took these into account in the conduct of the hearing, and in the assessment of the applicant’s oral evidence before.
§ Of particular note, [V] opined that that the applicant ‘would not be able to effectively engage in a Tribunal interview, and [that it] may be detrimental to his already fragile mental health’. The covering submission did not address the applicant’s competence to give evidence at the Tribunal hearing, merely requesting that the Tribunal take these issues (such as memory and possible confusion) into account in evaluating his evidence.
§ At hearing, the applicant and the representative confirmed that he was feeling well enough to give evidence. The applicant asked for some leeway if he was forgetful. He and the representative said that he had found the previous interview and hearing stressful.
§ The Tribunal took into account the MRD Division’s Guidelines on Vulnerable Persons, in particular in the manner of putting questions and information to the applicant, and giving him the opportunity to present further materials via written submissions.
Future prospects in Egypt: Several of the medical reports advocate for the grant to the applicant of permanent residency in Australia, noting that his separation from his family and uncertain migration status have contributed to his mental health issues. The focus of these comments is the applicant’s wish to remain in Australia and to have his family granted visas to join him. They do not expressly address his mental health if he returns to Egypt, or any associated needs for medical treatment.
Other factors: In addition to his frustration about the visa processing and his separation from family, the applicant also voiced concern about: (a) his current bridging visa conditions, under which he does not have work permission, and (b) his lack of access to government benefits. He also indicated that he felt that the Department and the Tribunal had treated him unfairly. He cited as examples errors in the delegate’s decision (i.e. the incorrect statement at interview that his family had been granted visitor visas, and the mention of another person’s name in the decision record); the tone of the hearing before the first Tribunal; and the Tribunal’s processes (such as the delay caused by the initial allocation of this case to one Tribunal Member, the scheduling of a hearing in 2022 and its subsequent cancellation).
The Tribunal accepts that the applicant is unhappy with these matters, and that they may have influenced his presentation before the current Tribunal. It makes allowance for this in its evaluation of his claims and evidence, but is not satisfied that they are directly relevant to the substance of his protection claims.
A submission dated 7 July 2023 has attached to it a summary of a 2006 research project comparing the mental health of refugees with temporary versus permanent protection visas[7]. The submission draws a parallel between the ‘trauma and psychological state’ faced by the holders of temporary protection visas, and protection visa applicants who face the uncertainty of lengthy processing times. For the reasons stated above, the Tribunal accepts that the applicant has found the lengthy processing times stressful. The submission goes on to propose that, if the Tribunal were to find that the applicant does not meet the refugee criterion, it could consider his mental health status when assessing his eligibility for complementary protection. The Tribunal considers this point below.
[7] Shakeh Momartin, Zachary Steel, Marianio Coello, Jorge Aroche, Derrick M Silove and Robert Brooks: Medical Journal of Australia, Vol. 185, No. 7, 2 October 2006: A comparison of the mental health of refugees with temporary versus permanent protection visas
The applicant has argued forcefully that he would not have lived separately from his wife and children for almost ten years, had it not been for a genuine fear that he (and they) are at risk of persecution and significant harm in Egypt. The Tribunal accepts that the period of separation is significant, that it has taken a personal toll on the applicant, and that indicates his strong desire to remain in Australia rather than return to Egypt. However, these factors do not shed much light on the veracity of the applicant’s protection claims, or whether they invoke Australia’s protection obligations. In other words, the Tribunal considers this to be of limited probative value in assessing his claims.
Delay in seeking protection
The significant delay between the applicant’s arrival in Australia (in December 2013) and his lodgement of a protection visa application (September 2015), also raises questions about the credibility of the applicant’s claims, and his need for protection.
The applicant wrote on 3 January 2020 stated that his former lawyer advised him to focus on his ongoing carer visa application, instead of seeking protection, so that he ‘would have more time to explain [his] circumstances. This appears to be a reference to [Ms Q, Law and migration company], who had also assisted him with the preparation of his primary application. (The applicant proceeded to make allegations about the lawyer.)
The Tribunal notes from the delegate’s decision record that the applicant had applied for a carer visa in June 2012; and that the application was refused in March 2013. It appears that the applicant’s sister [Ms O] applied for review of the decision to refuse the carer visa, and the decision was affirmed on 23 June 2014.[8] As also noted in the delegate’s decision record, the applicant arrived on a visitor visa [in] March 2014; and this was extended to 24 December 2014. The applicant then applied for ministerial intervention, which was determined as ‘not accepted’ on 22 July 2015. Two months later, on 14 September 2015, he lodged his protection visa application.
[8] The Tribunal does not consider this information to fall within the scope of s.424A, as it is not adverse and relevant to the current decision.
The Tribunal accepts that [Ms Q] acted on the applicant’s behalf, in relation to the carer visa application and the ministerial intervention request, as well as for the subsequent lodgement of the protection visa application. It also accepts that the applicant relied on her advice. It does not know what that advice was, and cannot draw any conclusions as to whether it adequately explains the applicant’s failure to present protection claims or express fears for his safety in Egypt. Nonetheless, the delay in seeking protection is significant, and adds to the Tribunal’s broad concerns about the applicant’s need for protection.
Egypt: Family-related claims
During this review, the applicant indicated that his primary focus was on the general treatment of Coptic Christians in Egypt. However, it is apparent from his original statement of claims and his more recent submissions that his family’s conflict with a brother-in-law who converted to Islam, and that person’s association with Muslim extremists, form an essential part of the applicant’s risk profile. The Tribunal therefore deals firstly with these specific claims.
Family background
The applicant claims that his former brother-in-law has an ongoing adverse interest in him, his immediate family (particularly his son [Master A]), and the extended family. This compounds the risks he faces as a Coptic Christian, if he returns to Egypt.
Brother-in-law: marriage and threats
Primary application: The applicant claimed that his sister [Ms D] married a Christian who later converted to Islam. He has since identified this person as [Mr X[9]]. After his conversion to Islam, [Mr X] pressured [Ms D] and their daughter [Ms Y] to also convert to Islam, threatening to kill them otherwise. [Ms D] fled to Australia in 2001, with [Ms Y], with the assistance of [Bishop Z]. They were granted protection in Australia.
[9] The submissions include various other spellings of this name. It appears to be the Coptic Christian name ‘[Most common form of name]’, [English equivalent].
The applicant claims that [Mr X]’s persistent demands for [Ms Y] to be returned to him and convert to Islam, and the family’s refusal to comply with his wishes, has motivated [Mr X] and his Muslim Brotherhood associates to target the entire family.
Evidence on review: The applicant has adhered to his claims about [Mr X]’s persistent interest in having [Ms Y] return to him, to convert to Islam. At hearing, he commented that [Mr X] still does not know where [Ms D] and [Ms Y] are. However, his interest in pursuing them is undiminished, despite the passage of time (22 years). For the reasons set out below (in particular, its analysis of events and the applicant’s actions since 2001), the Tribunal finds this claim problematic, and does not accept it at face value.
Threats to the entire family
The applicant claims that [Mr X] threatened to kill the entire (extended) family. As they were all at risk, they all made preparations to come to Australia in or around 2001. However, the bishop neglected to submit the paperwork for many years, and they therefore did not travel together.
The applicant did not provide details or evidence that he and the entire family were at risk; that there were any preparations for all of them to migrate to Australia in or around 2001; that the bishop failed to submit the paperwork for this to proceed; or that the siblings currently in Australia came here because of these circumstances. The Tribunal therefore places no weight on this narrative as evidence that the applicant – and indeed all family members – were at risk of persecution or significant harm from [Mr X] in 2001, or at any time later. Rather, it now proceeds to consider events and the applicant’s conduct in the decades following [Mr X]’s alleged threats.
Incidents in Egypt (before December 2013)

The applicant claims that after [Ms D] and [Ms Y] came to Australia, [Mr X] started o threaten the entire family, demanding that they return [Ms Y] to him, for conversion to Islam. He has threatened (among other things) to kidnap the applicant’s son [Master A]. As noted above, the applicant wrote that [Ms D] obtained a protection visa in Australia, with the assistance of [Bishop Z]. He claims that ‘the rest of the family’ submitted applications to come to Australia, but the church failed to submit the paperwork.
The applicant claims that [Mr X] managed to (forcibly) convert one cousin’s daughter and a cousin’s son to Islam; and that extremists kidnapped a cousin’s wife and converted her to Islam. (It is not clear from the written statement whether this refers to a single cousin, or different relatives.)
The applicant told the Tribunal that [Mr X] married his sister [Ms D] and, sometime after [Year][10], the couple and their daughter [Ms Y] moved into the applicant’s family home. The marriage broke down and the couple separated; there was no legal provision for them to divorce. [Mr X] later converted to Islam, and started demanding that [Ms D] and [Ms Y] return to him.
[10] The applicant gave [Date] as the date on which his mother, and [Mr X’s] and [Ms D]’s son, died.
During the course of this review, the applicant gave a consolidated (and in some respects, revised) account of his family’s experiences. In 2001, in the wake of ongoing threats and abuse, [Ms D] and [Ms Y] moved to Australia, with the help of the church (the Coptic Church).
2001-2002: The applicant claimed that [Mr X] did not know of [Ms D]’s and [Ms Y]’s whereabouts, and came looking for them. He used to knock on the door of the family residence, try to force his way into the house and yell abuse from the street. The applicant said that he lived in fear, leaving home only for necessities and to go to work, and feeling unsafe even at home. (At the time, the occupants of the family home included the applicant’s brothers [Mr F] and [Mr C], and two cousins, [Mr AA] and [Mr BB].) He drew a direct link between this and his current feelings of depression and fear that persist to this day.
Kidnappings: 2001-2004: The applicant’s original statement includes brief mention of three kidnappings, (a) a cousin’s daughter, (b) a cousin’s son, [Mr CC], and (c) a cousin’s wife. In each instance, they were converted to Islam.
He provided further details at the Department interview, as follows:
§ [Ms DD]: [Mr AA]’s wife [Ms DD] went missing in 2001. The applicant and other family members assumed that [Ms DD] was kidnapped and converted to Islam.
§ [Mr CC]: [Mr BB]’s son [Mr CC] went missing in 2004, and is presumed to have been kidnapped and converted to Islam.
§ [Ms P]: The applicant’s cousin [Ms P] went missing in late 2012, and has not been heard from since. [Ms P] had been helping a Muslim woman, when a Muslim man started to abuse her. The applicant and his twin brother [Mr F] intervened. Later, the man, accompanied by Muslim Brotherhood members and extremists, came to the house threatening to kill them. They later approached [Ms P]’s brothers asking to marry her; the brothers refused.
The applicant addressed these claimed incidents in his oral and written evidence to the current Tribunal, with the following information:
§ [Ms DD]: [Mr AA], [Ms DD]’s husband (the applicant’s cousin) was one of the people who had expelled [Mr X] from the family home.
§ [Mr CC]: Like [Mr AA], [Mr BB] ([Mr CC]’s father) had had confrontations with [Mr X], including on the day he was forced to leave the family home.
§ [Ms P]: [Mr X]’s friend [Mr EE], a member of the Muslim Brotherhood, had asked to marry [Ms P] on several occasions; she was already engaged to marry a distant cousin. The applicant and his brother [Ms P] went to [Mr EE]’s business to ask him to stop pestering her. Later, [Mr EE] and some of his Muslim Brotherhood associates went to the applicant’s home, and assaulted the applicant and [Mr F].
In relation to these incidents, the applicant wrote that the family informed the police but there was no response. He believes that these three incidents are directly linked with [Mr X], and evidence of his pursuit of the whole family. (He also claims that they are typical of the many incidents of kidnapping and forced conversion to Islam that other Christian friends have experienced.)
At hearing, the applicant confirmed these claims, with little additional information. In each case, he said – with varying degrees of confidence – that the family believes that [Mr X] and his Muslim Brotherhood associates are responsible, and that it goes back to the dispute with [Ms D] and [Ms Y]. He said that he did not have any police reports relating to these events. He added that most of the police are Muslims, and that, like the Department of State Security, they tend to protect Muslim extremists.
The Tribunal has significant concerns about the veracity of these claimed kidnappings.
§ First, the applicant originally claimed that all three relatives had been kidnapped and had been converted to Islam (or, in the case of [Ms P], been kidnapped for that purpose). From his more recent statements, it is apparent that he does not know for sure that [Ms DD] and [Mr CC] were kidnapped, or the identity of their ‘kidnappers’, or what happened to them. Moreover, [Ms P]’s disappearance seemed more closely linked with a marriage suitor’s pursuit of her, rather than [Mr X]’s (alleged) pursuit of the entire family. The upshot is that what the applicant presented as ‘facts’ turned out to be largely speculative, raising concern that the entirety of these claims is unreliable or without foundation.
§ Second, the applicant’s earlier presentation of [Ms P]’s ‘kidnapping’ as having been in 2012 was, as noted elsewhere in this decision, untruthful. Irrespective of whether the applicant or his former legal adviser devised the idea, the applicant’s presentation of it at the Department interview adds to the Tribunal’s concerns.
§ Third, the Tribunal explored with the applicant whether there were any police reports, or evidence of the family – many of whom are now in Australia, and at least one brother in [Country] – having made enquiries to establish the whereabouts of relatives who disappeared some 20 years ago. These questions yielded no insights. In the Tribunal’s view, it is difficult to believe that a family would simply accept the disappearance of relatives, without trace, with no further efforts to find out their fate.
§ Fourth, the Tribunal noted the reference to the applicant’s cousins [Mr AA] and [Mr BB], who were closely linked with the family home in [Address] and had lost close relatives (the wife [Ms DD], and son [Mr CC], respectively). This suggested a larger extended family (well beyond the applicant’s reference to his wife and two children as the ‘sole survivors’). In response, the applicant confirmed that he has paternal cousins in Egypt. He said that they had also been threatened in the past, and some family members had been kidnapped (it was not clear whether this referred to the above kidnappings, or others). They knew nothing about [Mr X]’s whereabouts, and they don’t ask (implicitly, they try to avoid mention of [Mr X], or any encounter with him).
These concerns, taken together, lead the Tribunal to not accept at face value that there were any such kidnappings.
Travel to Australia: 2004
The applicant and his brother [Mr F] visited Australia for three months in 2004[11]. He wrote that he returned to Egypt because he was single at the time, and wanted to protect his family. (He added that his priorities changed after marrying, as he – and his brother – felt the need to protect their own families.)
[11] The applicant wrote this in his statutory declaration of 14 September 2015, and confirmed it to the current Tribunal. The Tribunal has been unable to confirm this through Department records. The applicant submitted a copy of Egyptian passport [Number], issued to [the applicant, with one name spelled differently] (i.e. ‘[Alternative spelling]’ rather than ‘[Spelling]’, as appears in his current passport) in Cairo [in] 2002, which shows his arrival in Australia [in] March 2004.
At hearing before the current Tribunal, the applicant said that the main reason he returned to Egypt was that he did not wish to forfeit the deposit that had been paid for his visit. (The Tribunal presumes this to be a security deposit paid in the context of a family sponsored visitor visa, or a similar arrangement. He added that he was young and impressionable at the time, and thinking that he should return to Egypt to help his other family members back then. He added that [Mr X]’s later threats to kidnap his son (in 2013) changed everything, prompting him to leave the country.
In the Tribunal’s view, the applicant’s return to Egypt in June 2004, following a three-month stay in Australia, is strong evidence that he did not fear harm from [Mr X]; or linked with any kidnappings of relatives in the period from 2001 to 2004; or from the general treatment of the Coptic Christian minority (such as the cumulative effects of discrimination and violence). The Tribunal notes that the applicant returned to live in the family home, where he remained until at least 2012-2013, and does not accept that he went back to Egypt to ‘protect’ other family members. It considers that the other explanations he offered, even considered cumulatively, do not adequately explain how his return and continued stay in Egypt are consistent with his claim to have been subject to sustained threats from [Mr X], and other discrimination and risks.
Taking all of these concerns together, the Tribunal finds that there were no kidnappings of close relatives in the period 2001 to 2004, whether by [Mr X], his associates or other Muslims.
Developments after 2004
The Tribunal did not identify any specific incidents that occurred following his return from Australia in June 2004 and July 2012, when he claims that his family moved out of the family home in [Address] (which he attributed to both ‘direct threats’ to him and the family, as well as the ongoing political and economic turmoil after the election of Morsi’s ‘Muslim Brotherhood’ government).
The Tribunal notes that during this period, the applicant lived in [Address]; he married and started a family; he also started a [Work sector 3] business (which ultimately folded for reasons unrelated to his protection claims); he worked casually as [an Occupation 2] for a while; and he ultimately found work as [an Occupation 1] in two companies, up to early 2011. These circumstances suggest a modest, stable lifestyle, with little to suggest fear arising either from specific threats or general conditions (including as a Coptic Christian).
In his statement of 20 June 2023, the applicant wrote under the broad heading ‘2001-2012’ the following: ‘The constant abuse and torment from [Mr X] made me not feel safe in my own home. I would only leave home for necessities and to go to work but only when safe to do so. This took a toll on my mental health, relationships and ability to enjoy my life’. This and similar broad statements refer imprecisely to a much broader period, alluding to the psychological pressures from [Mr X]’s pursuit, and the measures that the applicant and his family had to take for their safety’. The Tribunal detects in this an attempt to present the pressure from [Mr X], and from living as a Coptic Christian, as persistent over a longer period, and oppressive.
Having regard to the material as a whole, the Tribunal does not accept that the applicant experienced conditions that amounted to persecution or significant harm during this period, or that were the seeds for such harm from mid-2012.
Developments since 2011 - confrontation in 2013
Background: The applicant referred in various statements to the political upheaval following the Egyptian Revolution. General country information indicates that in January/February 2011, widespread protests broke out against the Mubarak government. Many Copts joined Muslims to protest corruption, economic hardship and harsh security practices. Following Mubarak’s resignation in February 2011, the military assumed interim control. With the police and intelligence services dismantled, there was a crime wave and a surge in sectarian violence against Coptic Christians, including attacks on homes and churches throughout the country. In the June 2012 election, Mohammed Morsi of the Muslim Brotherhood’s political wing emerged as president. His authoritarian style and ongoing economic hardship led to further protests and clashes, with another military intervention to remove him on 3 July 2013. The Muslim Brotherhood’s ascendancy, together with the steady increase in communal tensions and violent incidents, and declining economic conditions, weighed heavily on the Coptic community.
In his original statement, the applicant wrote (without further details) that [Mr X] ‘is threatening to kidnap [his] son [Master A] […] if [the family] did not return his daughter to him’.
At the Department interview, the applicant said that in 2013, [Mr X] and his men came to his home.[12] They again demanded [Ms Y]’s return to them, and threatened to kidnap the applicant’s son [Master A] if the family did not comply. This prompted his siblings in Australia to suggest he come here, and for the applicant to start preparations. He essentially repeated the same claim to the first Tribunal.
[12] The interpreter initially stated that the threat had been relayed by ‘letter’, but then corrected it to state that [Mr X] confronted the applicant in person.
In evidence to the current Tribunal, set out in the summary statement of 20 June 2023 and discussed at hearing, the applicant claimed that he and other family members left the family home in mid-2012, in response to the Muslim Brotherhood’s electoral victory.
They stayed with other relatives, with the applicant returning to the family home from time to time to check for squatters and to prevent the Muslim Brotherhood from occupying it. During one such return visit to the family home, [Mr X] came by with Muslim Brotherhood associates, and confronted the applicant. Two of the men started to assault him, but [Mr X] intervened, impressing on the applicant that he wanted him to force [Ms Y]’s return to him. The applicant claims that [Mr X] then threatened to kidnap his son [Master A].
§ The applicant said that [Mr X] could have killed him, except that he wanted to find out where [Ms Y] was.
§ The Tribunal found the applicant’s account of this uncertain. During the course of the discussion, he suggested that [Mr X] had found him at the family home on more than one occasion during this period. He added that on one of these occasions, there had been some fighting, in which he had suffered some scratches and bruises.
§ The applicant said that he had not previously mentioned the multiple visits or the physical encounter; or he might have mentioned them only briefly.
The applicant claimed that, after this confrontation, he started plans to move the family to Australia, with the support of his siblings there.
The Tribunal has significant concerns about these claims.
§ First, it does not accept at face value that [Mr X] pursued the family in the period from about 2001 to 2004 (including alleged kidnapping of relatives), without achieving his goal (of forcing [Ms Y]’s return to Egypt), and then unexpectedly resumed his campaign some ten years later. The applicant and his family continued to live in [Address] throughout this period, and had employment for most of this period. The Tribunal considers that there would have been ample opportunity for [Mr X] to continue his pursuit of the family, had he so wished.
§ Second, the applicant suggested several times that the January 2011 revolution and Morsi’s electoral success in mid-2012 might have emboldened [Mr X] to start pursuing the family. This appears to be speculative, given the applicant’s claim to have had no direct contact with [Mr X].
§ Third, the applicant claimed that [Mr X] still to this day does not know where [Ms D] and [Ms Y] have gone (and hence, he fears that [Mr X] will punish him if he returns to Egypt and discovers their whereabouts). Given that [Ms D] and [Ms Y] left Egypt in 2001, and that other family members are now present in Egypt and Australia, it is difficult to believe that, some 22 years later, [Mr X] does know or surmise that [Ms Y] and [Ms D] are in Australia. More significantly, the applicant has not explained the basis for his statements as to what [Mr X] knows or does not know. His claim that [Mr X] is ignorant of [Ms Y]’s and [Ms D]’s whereabouts reinforces the Tribunal’s concern that this claim is without foundation.
§ Fourth, if the applicant fled Egypt in response to threats to him and, more particularly his son [Master A], and only he (the applicant) was able to travel to Australia, the Tribunal expects that this would be reflected in protective arrangements in place for [Master A]. The Tribunal notes the applicant’s evidence that [Master A] (and his wife and daughter) live just 15 minutes away from the family home in [Address]. The applicant’s account of their living arrangements and precautionary measures (such as taking a private taxi to school) did not persuade the Tribunal that they are living in fear of [Mr X] carrying out his threat, or of any similar fears.
Taking all of these concerns together, the Tribunal does not accept that [Mr X] confronted the applicant at the family home; that there was an argument, physical fight and/or any threats (including against the applicant and his son) on this occasion; or that [Mr X] spared the applicant go only because to kill him would mean that he would lose a chance to find out [Ms Y]’s whereabouts. The Tribunal finds that this and all associated claims have been fabricated.
Egypt: Experiences as a Coptic Christian
The applicant claims, and the Tribunal accepts, that he is a Coptic Christian. According to the most recent US Commission on International Religious Freedom (USCIRF) annual report, Copts make up at least ten per cent of Egypt’s population of some 107.7 million, and constitute the largest Christian minority in the Middle East and North Africa.[13] There is a range of evidence – including the names and circumstances of the applicant’s family members, and the applicant’s documentation – that indicate that he is a Coptic Christian.
Local violence
[13] US Commission on International Religious Freedom (USCIRF), Annual Report, April 2023.
In his statement of 3 January 2020, the applicant described his neighbourhood of [Suburb][14] as a Muslim Brotherhood stronghold. He referred to the sectarian violence in 1981, Egypt’s worst up to that point. Independent sources confirm that Muslims and Coptic Christians clashed violently, although reports vary as to the detail. Some sources state that Islamists killed some 80 Copts, injured hundreds and caused the widespread destruction of Coptic homes and businesses.[15] A 2013 paper published by the Carnegie Endowment for International Peace[16] comments that Copts fired the first shots at Muslims erecting a mosque on Copt-owned private property, followed by Muslim retaliation and a three-day battle that the authorities failed to stem. The Tribunal accepts that this violence, which occurred when the applicant was [Age] years old, has shaped the applicant’s and his family members’ views, and created some lasting tensions.
[14] He wrote this as ‘[Alternative transliteration]’, and there are similar variations in the transliteration of the name from Arabic.
[15] Egypt Independent, Roots of religious violence lie in both state and society, 13 April 2013:
[16] Carnegie Endowment for International Peace, Violence Against Copts in Egypt, Jason Browlee, November 14, 2013:

However, the Tribunal also notes that the applicant’s family continues to own the entire apartment building in [Suburb]; that the applicant and his family lived there until at least mid-2012; and that he completed his school and technical training, and found work nearby. The Tribunal notes from Google Maps that there are significant churches in this suburb, such as [Church 1]. It concludes that this is a mixed Muslim/Christian neighbourhood, with a Muslim majority.
Harassment from Muslim neighbours
The applicant claims that his neighbours have subjected him and his family to persistent ‘harassment, threats and persecution’. For the reasons stated above, the Tribunal accepts that the applicant’s neighbourhood as a Muslim majority, and that it was the scene of communal violence in the early 1980s.
Even so, the Tribunal does not accept at face value the applicant’s broad characterisation of his neighbours as extremists associated with the Muslim Brotherhood or the Salafists. Country information[17] indicates that the Muslim Brotherhood is an Islamist religious, political and social movement founded in 1928, which was designated a ‘terrorist organisation’ in December 2013. According to DFAT, all persons associated with it are likely to be subject to surveillance, and its leaders and active members are highly likely to face arrest and prosecution.
[17] Including DFAT Country information report – Egypt, 17 June 2019, para.3.52ff
The applicant gave some specific examples of Muslim neighbours’ misconduct, mainly relating to the family home, which is a ‘Christian-occupied’ building where he and his siblings have lived (on the upper floors), and which the family owns to this day.
§ In one instance, before his departure for Australia, the owners of a house behind him (‘Salafists’) demolished their home and erected a new, larger one, without prior notice or permission. The Tribunal accepts as plausible that the applicant’s neighbours built a new house without permission, and that the applicant is unhappy about it. However, it is not satisfied on that either the construction activity, or the neighbours’ failure to follow due process, is related to their or the applicant’s religion.
§ The applicant also claimed that in 2017 (more than three years after his arrival in Australia), furniture and flammable items on the roof of his building (immediately above his vacant top-floor apartment) were set alight. The applicant’s brother [Mr C] and his son rushed to the premises to extinguish the fire. The applicant believes that the Muslim neighbours whose building overlooks the roof of his home were responsible for throwing the items on the roof, and for setting the items on fire. He provided several photographs showing burnt furniture and other debris on what appears to be a rooftop terrace.
The applicant claims that his family members did not make a complaint to the police about the fire, ‘because they feared that if the police investigated, then this would provoke the neighbours more and likely cause more harm’.[18] He stressed that he cannot trust the police to provide protection from harm perpetrated by Muslims.
[18] Submission of 13 December 2019.
The Tribunal is not satisfied, on the limited available material, that the applicant’s family refrained from reporting such an incident due to any view that the police fail to protect Christians against Muslim aggression. It notes the applicant’s comment, on the same page of that submission, that he ‘suspects’ that the neighbours are responsible both for the dumping as well as the fire, as they were the only ones with access to the top floor. This suggests that other factors – such as the lack of direct evidence about the neighbours – may have also played a role in any failure to report the incident. On the available material, and having regard to its concerns about the applicant’s reliability, the Tribunal places minimal weight on this account as evidence that the police favour Muslims, and do not provide protection to Christians.
In sum, the Tribunal accepts as plausible that there has been some tension between the applicant’s family and their neighbours from time to time, and that there may have been some religious dimension to this. However, it is not satisfied that this has involved serious harm amounting to persecution, or significant harm; and it is also not satisfied that the applicant and his family have perceived it as such.
Discrimination and mistreatment
The applicant claims that (in addition to the specific threats from [Mr X]), Muslims generally have targeted him and his family as Christians, including discrimination and violence.
Job discrimination
Primary application: In his original statement, the applicant wrote that from ‘June 2012 till November 2012, [he] worked in [Company 1] for [Work sector 1] and [he] was fired simply for being Christian’. In the last (unnamed) company he worked in, he faced a lot of persecution, and was fired because of his religion. (The wording of this text does not make clear whether this was a second firing, or simply a repeated reference to [Company 1].)
At the Department interview, the applicant referred to two separate dismissals.
§ At the first company, he was working as supervisor and resigned, but was then persuaded to return on a higher salary. He trained up a new staff member, a Muslim named [Mr FF], who was then given his position as supervisor. The company asked him to take another position, as an assistant (i.e. a demotion). The applicant refused to do so, and was dismissed in accordance with company policy.
§ The applicant took a job with another company. He told [Mr FF] where he was working, and [Mr FF] then found work with that company. The same scenario played out again.
The applicant said that most supervisors were Christian. He believed that on both occasions, he lost his job to [Mr FF] because of religious discrimination, i.e. because the applicant was Christian and [Mr FF] was Muslim.
Review application: The applicant has since clarified (to the first and current Tribunals) that these incidents took place in around 2002 to 2004 (and not in 2012, with [Company 1], as stated in the original claims). Piecing together the accounts that he gave to the first and current Tribunals, he appears to be claiming the following:
[Company 2] – employed from November 1997 to July 2003
§ As related to T1: The applicant worked there, but resigned in 2002 because there had been a cut to the wages. About six months later, he was re-hired as a supervisor, and asked to train up a former colleague [Mr FF], a Muslim. The applicant said that religion was always an issue (they used to discuss it during breaks), and he felt that there was a plan to remove him in favour of Muslims. [Mr FF] more or less confirmed this, when he asked to be trained by a different supervisor, a Muslim. After the applicant trained [Mr FF], he was demoted and moved to another department. He was then given notice to leave the company.
§ As related to T2: The applicant had worked with [Company 2], left in 2002 and returned as a supervisor after a few months. He was tasked to train [Mr FF], but he ([Mr FF]) preferred to work with Muslims, and bullied and provoked the applicant into a physical altercation. The applicant was demoted, but refused to accept the new position. He was then dismissed on the spot.
[Company 3] – employed from August 2003 to March 2004
§ As related to the Department and T1: At the Department interview, the applicant did not have details of his former employers, but recalled that [Mr FF] went to the new company and the same thing happened again. At hearing before the first Tribunal, he approximated the name to ‘[Name]’. (The discussion was confused as the applicant could not recall the names of his employer, and did not give a clear timeline.)
§ As related to T2: The applicant wrote on 20 June 2023, that after he started work in [Company 3], a mutual friend arranged for him and [Mr FF] to have lunch, to resolve their conflict. During the discussion, the applicant mentioned where he was working. About a month later, [Mr FF] started working there. [Mr FF] ended up breaking some equipment, for which he blamed the applicant. The applicant left that job just before coming to Australia (March to June 2004).
In assessing these incidents, and whether they support the applicant’s claim to have been subject to persistent job discrimination, the Tribunal has regard to the following.
First, the Tribunal takes into account country information indicating that Coptic Christians face discrimination in employment and similar areas, despite anti-discriminatory law and legal protections, which are often not enforced.[19] It also recognises that discrimination can occur subtly, for instance in the ‘guise of company policy’[20], and through other forms of pressure, usually undocumented. It takes into account the corrosive effect this can have on individuals. Against this background, the applicant’s broad claims appear plausible, for instance, that most [Occupation 1] supervisors at the time were Christian; that Muslim employers tended to favour fellow Muslims for employment and promotion; and that the applicant at least interpreted events in the workplace through the prism of Muslim-Christian relations.
[19] 'AN ADVOCACY GROUP CONTRADICTS EGYPT’S OFFICIAL RHETORIC ON THE SITUATION OF COPTS', Coptic Solidarity, 21 April 2021; 'Meet Egypt’s Christian soccer team', Al Monitor, 14 February 2021.
[20] As per the submission of 13 December 2019, page 6.
Second, there is a broader question about the applicant’s reliability as a narrator, and whether his account of these experiences in fact involved religious discrimination, or amounted to serious or significant harm.
§ The Tribunal notes, for instance, that his original statement unambiguously stated that in November 2012, while working for [Company 1], he ‘was fired for simply being a Christian’. It now transpires that this claim related to two different employers, about a decade earlier, and that the circumstances were more complicated that initially suggested.
§ The applicant’s accounts over time raise questions both about the details and his interpretation of events. For instance, he claimed that the immediate reason for his dismissal at [Company 2] had been a fight with [Mr FF], and at [Company 3], he was held responsible for equipment damage. In both cases, the applicant contended that his employer and/or [Mr FF] had set him up, and that these incidents were merely pretexts to fire him. Either way, these scenarios differ markedly from the claims during the primary application, i.e. that he was fired for refusing to accept a demotion to another department and/or for ‘simply being a Christian’.
Third, significantly, the applicant’s education and employment history as a whole suggests that, irrespective of his employment conditions in the period from 2002 to 2004 (including any conflict), he has not suffered religious discrimination amounting to serious or significant harm.
§ The Tribunal notes that the applicant attended primary and secondary school in his local area, and completed a [diploma] in [Subject] in [Year], at the age of 20.
§ There is little in the applicant’s employment history to indicate that he has been subject to religious discrimination, at least of any seriousness. He appears to have had employment in his field of expertise ([Work sector 1] and [Occupation 1]) for most of the period from 1995 until December 2012, including as a supervisor (as early as 2002). The applicant recalled the name of seven companies that had employed him.
-   At hearing, he said that some companies had told him that they do not employ Christians. The Tribunal is sceptical that employers express discriminatory practices in such bald terms, but accepts as plausible that some companies favour Muslims (including those who have family, business or community connections with the employer).
-   The Tribunal takes into account that the applicant appears to have had some periods of unemployment ([Year]-[Year], after his return from Australia and again and in the immediate wake of the Egyptian Revolution in early 2011); although, for at least part of these period, he was self-employed (he started his own business on his return from Australia in 2004) or working in the informal sector to make ends meet (for instance, as [an Occupation 2]).
-   The overall picture that emerges is that the applicant has worked in the private sector, sometimes informally; and that this has been subject to the vagaries of business, economic and political conditions.
In sum, the Tribunal accepts as plausible that the applicant has experienced some discrimination when looking for work in Egypt, and/or in the workplace. It also accepts that conditions in Egypt’s labour market and economy may be difficult; and that this may exacerbate the impact of discrimination where it occurs. However, it is also evident that the applicant has found work commensurate with his qualifications, often at a supervisor level that suggests recognition of his skills and authority over others.
The Tribunal notes country information indicating that discrimination against Coptic Christians is widespread, and may take many forms. However, having regard to the applicant’s circumstances as a whole – including his education and employment history, his family’s property ownership and his return travel to Australia in 2004 – it does not accept that such discrimination has, even cumulatively, amounted to persecutory or significant harm.
Travel to Australia and delay in seeking protection
The applicant arrived in Australia on a visitor visa [in] December 2013. In light of the above findings, the Tribunal does not accept that the applicant fled Egypt after [Mr X] threatened to kidnap [Master A] and harm the applicant (this incident did not happen). The Tribunal accepts that general concerns about the future of the Coptic Christian community, and the economic and political upheaval between 2011 and 2013[21], all influenced the applicant’s decision to migrate to Australia. However, it does not accept that he departed Egypt to flee persecution or significant harm.
[21] This includes the January 2011 revolution; the election of the Morsi government associated with the Muslim Brotherhood in mid-2012; and widespread protests and violence that saw the military intervene once again in July 2013, with the eventual new constitution and election of the Sisi government in 2014.

100. During the primary application and review, two issues have arisen in this connection: (a) the applicant’s travel to Australia his wife and children; and (b) the delay between his arrival and his lodgement of a protection visa application. The Tribunal considers it important to address these, even though it finds that they are not determinative.
101. Travel to Australia alone: The applicant claims that it was [Mr X]’s threat to kidnap his son [Master A] that prompted him (the applicant) to ‘move [his] family from Egypt’. This naturally raises the question, then, of why he travelled to Australia alone, leaving his son and other family members in Egypt, where they allegedly remained at risk. There have been several strands to the discussion on this issue:
§ At the Department interview, the delegate put to the applicant that Department records showed that his other family members had in fact been granted visitor visas, in either September or December 2013. This appears to have been incorrect. As noted above, the applicant claims that this caused him confusion and distress. The Tribunal has addressed this above (in the context of mental health considerations).
§ The applicant confirmed that he did apply for visitor visas for all the family, but these were unsuccessful. At the Department interview and again before the current Tribunal he also explained that after he obtained his Australian visitor visa (on 3 October 2013), he lodged another visa application for his son, although this too was refused.
§ The applicant expressed his dismay at the suggestion that he had been uncaring towards or neglectful of family members, as he had done his best to arrange for them to travel to Australia with him.
102. The Tribunal accepts that the applicant would have preferred to travel to Australia with his wife and children, and that he faced the choice of either travelling alone or remaining in Egypt.
§ In its view, the relevance of his travel to Australia alone nonetheless raises questions about: (a) the truthfulness of the claim that [Mr X] threatened to kidnap his son, in a credible and immediate way; and (b) the arrangements that were put in place to protect [Master A] and the other family members, following the applicant’s departure. Overall, the applicant’s decision to travel alone adds to the Tribunal’s already strong doubts that [Mr X] in fact pursued the applicant (for over a decade at the time of his departure), renewed his threats in 2013, and singled out [Master A] as the target of a future kidnapping .
§ The applicant claims that his wife and children moved to her relatives sometime during 2012, and have remained there since. At hearing, he said that they are living in Cairo, some 15 minutes from the family home in [Suburb]. He was initially hesitant when asked whether his children attend school, initially focussing on the impact of the Covid pandemic and then explaining that they have now resumed school. He added that they are vigilant, and have to travel to and from school by private taxi, rather than public transport. The Tribunal finds it unsurprising that the applicant’s wife and children are living with her relatives, in the applicant’s absence. It considers the evidence that they left the family home in 2012 (in response to increasing threats from [Mr X] and others), or that they have taken other protective measures, to be weak and inconclusive.
103. The Tribunal has addressed the applicant’s delay in seeking protection in Australia above (‘Assessment of claim’). In short, the delay was almost two years. Even after consideration of the applicant’s reasons (including the ongoing carer visa application and his lawyer’s advice at the time), it considers that the delay undermines his claims.
Developments after December 2013 (the applicant’s arrival in Australia)
104. In his original application, lodged in September 2015, the applicant did not identify any incidents following his departure from Egypt, although some of his broad statements such as ‘my family and I are in danger from all angles’ suggest ongoing general risks. There is also no record of him having raised any such claims during the primary application.
105. Wife’s intimidation at the family home: At hearing before the current Tribunal, the applicant referred to an incident which he thought might have occurred some two or three years after he came to Australia (hence, perhaps in 2015 or 2016). His wife returned to the family home ([Address]) to collect some documents for the children’s schooling. While she was in the apartment, someone started banging on the door, threatening to storm the house if she did not open up. Terrified, she pretended to telephone the police and the people left.
§ The applicant mentioned this in response to the Tribunal’s question about his activities between the grant of his Australian visa and his departure from Egypt, which he addressed at another point (by stating that he decided to apply again for his son and other family members to obtain visitor visas and accompany him to Australia). However, his mention of this having taken place a few years after he left Egypt suggests that he was referring to continued suspicious activity around the family home, and intimidation of family members.
§ The Tribunal queried why – if, as claimed, the applicant’s wife and children had moved to her relatives’ homes during 2012 – they kept important documents in the apartment. He said that his wife had not had the opportunity to retrieve all the documents, clothes and other personal effects from the family home. In response to a further question, he said that there are still some items there.

147. The Tribunal rejects all of the claims associated with this, including that the fled Egypt in response to threats (to him and/or to his son [Master A]); that his wife and children are in hiding from [Mr X], with her relatives; that other relatives (including the applicant’s brother [Mr C], his nephew [Mr L] and/or paternal cousins close to the individuals who he claimed to have been kidnapped) have moved abroad and/or are in hiding from [Mr X] and his associates.
148. The Tribunal accepts that the applicant has drawn in part on true events, such that his wife and children are living with her relatives; that his brother went to [Country] (although he returns to Egypt occasionally); and that at least part of the family home is unoccupied for the time being. However, it finds that these are unrelated to the now-rejected claims that [Mr X] and his Muslims associates have threatened to kill the entire family.
149. As a result, the Tribunal finds there is no real chance of [Mr X] (or any Muslim associates) targeting and inflicting serious harm on the applicant, for any reason (including his Christian faith). It finds there is also no real chance of the applicant having to take precautionary measures to avoid such harm (such as changing his place of residence or going into hiding), and no real chance of him requiring police protection from such harm.
150. It follows that the Tribunal also finds no circumstances – such as ongoing enmity with a Muslim convert, or Muslim extremists – that render the applicant more vulnerable to persecutory harm, such as violence or discrimination.
151. The applicant made passing mention that he knows that people like him are targeted on their return to Egypt. The Tribunal understands this to be a restatement of his claim that Coptic Christians, particularly those who are the subject of adverse attention from Muslim extremists are at risk of persecution. It does not detect in this statement, or in the submissions, any claim that the Egyptian authorities or others target Coptic Christians on their arrival in the country (including for reason of any prolonged absence, or any suspicions that they may have applied for protection).
Breach of a third person’s confidentiality
152. The delegate’s decision record names another person ‘[Mr GG]’, at page 8 (in relation to a finding on the complementary protection criterion). The applicant claims to fear that his name may have been ‘swapped’, such that it appears in a decision relating to [Mr GG]; that [Mr GG] has a Muslim name and may be an Egyptian who belongs to the Muslim Brotherhood; and that the Egyptian authorities might come to know about the applicant’s protection visa application.
153. The Tribunal understands the applicant’s concern about this error. [Mr GG]’s name or the entire sentence appear to have been copied and pasted from another document, most likely a decision record relating to [Mr GG]. Clearly [Mr GG]’s name should not have been included in the applicant’s decision record.
154. In the submission of 5 May 2023 and in the applicant’s and representative’s comments at hearing, the following emerged:
§ The applicant had been ‘shocked’ to see the name of another person appear in his decision record. The submission suggests that this has ‘exacerbated the stress our client endures’, based on: (a) the ‘poor oversight’ that the mistake displays; and (b) the possibility that the delegate also copied and pasted the applicant’s name elsewhere.
§ The submission notes [Mr GG]’s Muslim first name, and claims that the applicant is worried that if his (the applicant’s) name appears in other documents, this could alert the Egyptian authorities to his protection visa application. At hearing, the applicant confirmed these concerns. At the same time, both he and his representative advised that they had made no enquiries to the Department about this.
155. The Tribunal accepts that the applicant found it disconcerting that his decision record contains the name of another person.
156. However, it considers his claims to worry that his name appears in [Mr GG]’s decision record; that news of his protection visa application might therefore reach the Egyptian authorities; and that such fears have exacerbated his stress levels, to be exaggerated and unfounded. Apart from [Mr GG]’s Muslim first name, there is nothing to indicate where he is from; or that he has the applicant’s details (i.e. that the delegate ‘swapped’ the names); or that, even if he had the applicant’s name, he would be motivated to give information to the Egyptian authorities. The applicant’s and his representative’s lack of follow-up with the Department, to confirm that the applicant’s name did not appear in [Mr GG]’s or any other protection visa decision records, reinforces the Tribunal’s view that he does not genuinely fear that the single incorrect reference in his decision record has any other consequences for him, in Australia or Egypt.
Overall assessment
157. The Tribunal has considered all the applicant’s claims and evidence, including their cumulative effect. It is not satisfied that he faces a real chance of serious harm as a Coptic Christian (on the grounds of religion, race, and actual or imputed political opinion) or for any reason, now or in the reasonably foreseeable future, if he returns to Egypt.
158. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1)(a), now or in the reasonably foreseeable future, if he returns to Egypt. He therefore does not meet the refugee criterion in s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
159. The Tribunal, having concluded that the applicant does not satisfy s.36(2)(a) now proceeds whether he meets the complementary protection criterion in s.36(2)(aa). It has regards to the findings of fact above, his future conduct and relevant country information.
160. It notes also that 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: MIAC v SZQRB [2013] FCAFC 33.
161. Based on the above findings of fact, assessment of the applicant’s future conduct and analysis of country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant will face a real risk of significant harm if he returns to Egypt.
162. As noted above, the representative referred in a submission dated 7 July 2023 to a 2006 Australian study that compared the mental health of refugees holding temporary and permanent protection visas. It invites the Tribunal to consider the applicant’s mental health issues – as a person who has faced the uncertainty of drawn-out processing times - as similar to that of temporary protection visa holders. It also raises this in the context of complementary protection, without further details.
163. The applicant’s mental health outlook if he returns to Egypt is not obvious from the material before the Tribunal.
§ In the Tribunal’s view, his removal from Australia would resolve some of the key stressors which he has identified, such as the separation from his wife and children; his uncertain migration status in Australia; and his dissatisfaction with visa conditions (such as lack of work conditions).
§ At the same time, it accepts that the applicant’s removal would mean his separation from family members in Australia (although the submissions referring to his ‘social isolation’ suggest that the family members have been limited in the support they have been able to provide to him); and his disappointment at being able to achieve permanent residency and the prospect of his family joining him in Australia.
§ The Tribunal also accepts that the applicant’s removal to Egypt would mean that he would have to invest effort into settling back into life there, such as re-establishing contacts with remaining family and friends, looking for work, and making other practical arrangements (e.g., deciding whether to stay with his wife’s family, move back to [Address], or rent elsewhere). It accepts that this would be a period of some adjustment and associated stress for him.
164. The Tribunal is not satisfied on the available material that any mental stress that may arise in relation to the applicant’s removal gives rise to a real risk of ‘significant harm’, such as ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. First, it is not satisfied that there is a real risk of the required level of harm, such as severe pain or suffering, or extreme humiliation. Second, it is not satisfied that any harm, in the form of mental stress arising from his removal, would be intentionally inflicted on him.
165. Several submissions and medical letters refer to the applicant’s suicidal ideations, mostly linked with the stress of his uncertain migration status and separation from his family. He did not express any intention to pursue such a path if he returns to Egypt, and the Tribunal is not satisfied on the limited available material that there are substantial grounds to believe he will do so. In any event, having regard to the findings of the Federal Court in EZC18 v MHA[41] the Tribunal is not satisfied that any risk of suicide upon the applicant’s return to Egypt would amount to a real risk of him being arbitrarily deprived of his life, as it does not involve the act of another person.
[41] EZC18 v MHA [2019] FCA 2143, at [47].
166. Having regard to his circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
167. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm: s.36(2)(aa).
CONCLUSION
168. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
169. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
170. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
Humanitarian consideration
171. The submission of 20 June 2023 requests the Tribunal to refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. It draws attention to the applicant’s ‘compelling and compassionate circumstances (especially given [his] current mental health and psychological state, which if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship’) as grounds for referring the case to the Minister for personal intervention.
172. The Tribunal has considered the applicant’s case and the circumstances that could be relevant to the Minister’s exercise of discretionary power. In terms of the factors that may be affect his psychological state, it notes that there is limited information about his current activities in Australia; his family or social support; and his family’s real situation in Egypt. The Tribunal has decided not to refer the matter, but notes that the applicant can still make a request directly to the Minister.
DECISION
173. The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

marginalization, oppression, intolerance, infringement, violation, ostracism, hostilities, harassment, abuse, violence, ethnic cleansing and genocide.”

[2023] AATA 3432

28 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction