2118592 (Refugee) - [2025] ARTA 2012

2118592 (Refugee) [2025] ARTA 2012 (9 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2118592
Tribunal:Denis Dragovic
Date:9 September 2025

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Senior Member D. Dragovic

Statement made on 9 September 2025 at 9:34 AM
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Christian – particular social group – Christian women in Egypt – fears assault, discrimination and harassment – victim of multiple sexual assaults – prevalence of gender-based violence and targeted sexual violence against Christians in home country – identified by no hijab – shame and fear drive underreporting – prejudice against Christian claims of victimhood – would return without male protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Egypt, applied for the visas on 26 September 2019. The delegate refused to grant the visas on 2 December 2021.
The applicants appeared before the Tribunal on 15 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
REASONS AND FINDINGS
The applicant is [an age]-year-old Egyptian women who is married to an Egyptian man currently residing in Australia and himself seeking protection. The husband’s protection visa application was separately rejected, and he is seeking ministerial intervention. The couple have two children, one of whom is the second named applicant. The second child was born after the primary decision was made in this case and as such could not be added to the mother’s application.
The applicants are practicing Coptic Christians.
When the applicant was asked what her husband would do were she forced to return, she said that they have not discussed it and that she refuses to return. I note that the applicant’s husband is on a separate visa pathway to the applicant and that they have a child who was not included in either parent’s application and, as such, may apply for her own protection visa. Depending upon how the child’s application is formulated the family may remain together or they could continue on separate visa pathways. The relevance of this is that it is reasonable for the Tribunal to assume that were the applicants to return in the reasonably foreseeable future, they would return without the husband and second child. The representative acknowledged this in her submissions, agreeing that it is ‘highly possible’.
The applicant arrived in Australia in November 2015 on a student visa then departed for five weeks in 2017, returning to Egypt as her mother was unwell. She left Egypt suddenly following a sexual assault.
The applicant presented at the Tribunal with a visible fear of recalling events from the past. She spoke to the Tribunal of having suffered multiple sexual assaults during her life in Egypt. These were detailed in submissions with further evidence provided at the hearing.
It is not necessary to detail them here other than to provide a summary and timeline and note that I accept that the applicant has experienced multiple serious sexual assaults including from when she was [age] years old, subsequently in her workplace, on the streets and most recently while she was visiting Egypt in 2017. I accept these claims based on consistency in her evidence, psychologist’s reports, and alignment at a high level with country information.
Timeline of the assaults:
·At [age] the applicant was cornered in her building’s stairwell and assaulted by an older man who masturbated and ejaculated on her while she was held against him.
·At her place of work, [Company 1], she was followed outside of work by a client who had suggested that she was sexually available because of her faith. Her employer forced her to continue to engage with the client.
·Regular verbal and physical abuse for not wearing a hijab including insults and attempts at groping.
·Regular observations of other Christian women being assaulted and abused.
·2017 she was raped in a lift in what she described as a ‘terrifying assault’. The assault included religious abuse.
The relevance of this evidence is two-fold. The applicant is particularly vulnerable psychologically. Submissions were provided from the psychologist to support this. The second is that her experiences provide insight into the future were she to return in so far as the assaults, discrimination and harassment were driven by a patriarchal culture that, as the country information detailed below shows, has normalised sexual assault on women and particularly Christian women. This culture of impunity, the country information shows, persists despite efforts by the government.
In the following section I will look at the country information relevant to the applicant’s claims.
Country information about limitations on Coptic Christians practicing their faith
There is a general consensus that the situation for minority Christians in Egypt has improved under President Sisi, but that challenges remain, in particular cultural and community-based discrimination.
High level commentary includes the United States Commission on International Religious Freedom:
In 2024, religious freedom conditions in Egypt remained poor, consistent with past years. The government of Egypt continued to systematically restrict freedom of religion or belief (FoRB) for religious minority communities and individuals who express ideas that differ from the state’s interpretation of Islam.
The European Centre for Law and Justice notes:
a disturbing pattern of systemic discrimination, legal harassment, and societal persecution against Egypt's Christian minority, particularly in Upper Egypt, and call for urgent international intervention.
…
Christians in Egypt, particularly in rural areas, are subjected to intense societal persecution. This includes harassment of Christian women, who are often targeted for kidnappings, forced conversions, and coerced marriages to Muslim men. Christian children face bullying in schools, and Christian communities are frequently attacked by mobs incited by rumors of blasphemy or other religious grievances. The report documents several cases where local authorities failed to protect Christian communities or hold perpetrators accountable, fostering an environment of impunity and fear.
Efforts are being made by the Egyptian government:
·Police are stationed at churches[1] is an indication of the government taking the security of Christians seriously. There is evidence that in some instances the police have engaged attackers.[2]
·The Grand Mufti Shawki Allam issued a fatwa allowing Muslims to work on the construction of churches.[3] This shows a proactive effort by the establishment of Islam in Egypt towards supporting Christians.
·Pope Tawadros, head of the Coptic Orthodox Church, when speaking generally to the topic of mistreatment by the state denied the implication that his congregation was being persecuted. He was quoted as saying, ‘In Egypt there are 5,000 villages. It happens that in some of them people act recklessly,’ adding, ‘I categorically reject the definition of ‘persecution.’’[4]
·Ramez Atallah, General Secretary of the Bible Society of Egypt noted that there are surprisingly few problems among an Egyptian population of 100 million.[5]
·Looking at the general representation of Copts in government leadership positions, since the 2014 constitution established a quota, according to a 2021 article, elected Coptic parliamentarians have increased from 5 to 31 in Egypt’s House of Representatives and from 15 to 24 in its Senate. In addition, there are two Copts as governors of Egypt’s 27 regions.[6] I note that in July 2024 a new set of 27 governors took their oaths of office, but I was unable to find any reference to their religion.[7]
·The 2023 United States Commission on International Religious Freedom (USCIRF) noted that large scale attacks against Coptic Christians have ‘not returned’.[8] An earlier source noted that there haven’t been any such attacks since 2018.[9] Another source stated, ‘the security situation in Egypt “improved” for Coptic Christians between 2020 and 2022; with the government having “driv[en] Islamist movements into exile or underground,” sectarian violence is “not common,” though it still occurs in a “restrained” but “unpredictabl[e]” manner, particularly on Coptic religious holidays such as Coptic Christmas or Easter.’[10] No information could be found that indicated that any new large-scale attacks have occurred through to the end of 2024.
·A 2016 law provides a process to regularise into law existing churches and to allow for a legal process to approve the building of new churches. This process has seen 3,453 churches regularised.[11]
·The blasphemy laws have been used in a limited number of 130 cases over a period of a decade.[12]
[1] ‘Gunmen kill Christian worshippers at Coptic church near Cairo’, The Guardian, 30 December 2017
[3] ibid
[6] ibid
[7] Open Doors, ‘Egypt: Full Country Dossier,’ January 2023
[10] UK Home Office, ‘Country Policy and Information Note: Egypt: Christians,’ December 2023 at [10.1.10]
[11] >
While the above information depicts a situation in Egypt that is safe for Coptic Christians and a government that is acknowledging the place of Coptic Christian life in Egyptian society, other country information indicates that there continue to be localised incidents:
·The above quoted USCIRF report notes, ‘While larger-scale violent attacks on religious minorities, especially Copts, did not return to previously high levels, individual incidences of anti-Coptic violence—such as physical attacks on Copts in the workplace—persisted.’ The USCIRF report describes other violence, but it is in rural and regional governorates that have a different history of sectarianism than where the applicant is from.
·This view of a differential profile across governorates is supported by a 2024 Open Doors report: ‘Societal hostility and prejudice against Christians are more pronounced in the poorer and rural parts of the country.’[13]
·Coptic Solidarity, an advocacy group for equal rights for Copts, reported in 2021 that Copts ‘still endure discrimination, sectarian violence, and terrorist attacks.’[14] It added that the use of informal mediation leads to impunity for sectarian violence and Coptic women have faced increasing attacks. Other areas of discrimination were identified including sports and employment in the bureaucracy.
[13] Egypt: Full Country Dossier 2024, Open Doors, January 2024, p.7 and p.32,
[14] >
The above information conveys competing perspectives. While the situation is improving, discrimination and targeted harm remains. This information is relevant to the review both in contributing to an assessment of specific harm facing Coptic Christians but also as a backgrounder to the specific circumstances of the applicant.
Country information about female Coptic Christian and sexual assault
During the hearing it was noted that there is limited information about religious based gendered violence. Upon request, the representative provided further country information on these issues in post-hearing submissions.
Before proceeding to engage with it, I turn my mind to the sources. Coptic Solidarity is an advocacy group. It describes its purpose as being ‘dedicated to advocating equal citizenship rights for the indigenous Coptic Christians in Egypt.’[15] While there is an apparent risk of information provided by this group being biased towards Coptic perspectives, on the other hand due to their community relations throughout Egypt and ability to source information unavailable to others, there can be unique value in their reports. As this decision turns on the interpretation of country information, to mitigate these risks I have reviewed the methodology used by Coptic Solidarity in preparing their report and have turned to other sources to sense check foundational claims.
[15] >
Coptic Solidarity’s 2025 report: Hidden Crimes, Public Deception: The Epidemic of the Disappearance of Coptic Girls and Women in Egypt provides the following insights as to why the risks facing the applicant are not easily discerned by outside analysts:
·The reporting of gender-specific religious persecution remains underreported
·The reasons for this include a refusal to report on disappearances by the Egyptian government and outward denial of the problem.
·“The faith-based marginalized position of Copts, within Egypt’s legal framework and Egyptian society, is often overlooked in reports by non-governmental organisations (NGO), institutions, and policy makers…Reports, policies, and legislation regarding abduction and / or human trafficking in Egypt, focus predominantly on sexual violence alone, without considering the religious motivation.”[16]
[16] Sonja Dahlmans, ‘Hidden Crimes, Public Deception: The epidemic of the disappearance of Coptic girls and women in Egypt’, Coptic Solidarity, 2025
One report explains how women are the cultural guarantors of a collective identity and so can be targeted in ways that are directed not at an individual but the community:
Women face discrimination, pressure and, often, violence in all areas of their lives. This is exacerbated for those who are poor or who lack education.
…
Women are targeted in the majority of cases because of the ease with which their religious, tribal or political affiliation can be judged from their external appearance, clothing or behaviour. Violence against women is thus often collective violence against the community to which the women belong.”[17]
[17] Egyptian Center for Women's Rights. “Violence Against Women in Egypt.” UN Women, available at:
The International Federation for Human Rights produced a report titled, Exposing State Hypocracy: Sexual Violence by Security Forces in Egypt in which it explains that women are treated as the “guarantors” of collective identity and for this reason can be the targets of security abuses.[18]
[18] >
This view is reinforced in a report by Open Doors, a Christian NGO:
Sexual violence, forced marriage, and trafficking stalks marginalized Christian women and girls across diverse global regions, often as a means of punishing and shaming Christian families. Widely viewed to be of lesser worth, their child-bearing capabilities and sexual purity are targeted.[19]
[19] type="1">
Coptic Solidarity affirmed this in its 2025 report by stating, ‘In the interviews Coptic Solidarity conducted, we have heard from several relatives of victims that not wearing an Islamic veil, as an indicator that a woman or girl is a Christian, sometimes signals them out as a target for sexual violence…’[20]
[20] Coptic Solidarity
The representative brought to the Tribunal’s attention a claim in the Coptic Solidarity report that through their interviews it became apparent that the Coptic victims being targeted show additional vulnerabilities including mental health challenges such as the applicant.
An example in the Coptic Solidarity report of how the confluence of prejudices align against Copts is in the story of Niveen Sobhy:
To illustrate, during the Islamic fasting month of Ramadan, a Coptic woman, Niveen Sobhy (30) was assaulted because she had left her house [unaccompanied] and walked outside wearing a short-sleeved T-shirt.
When Mrs. Sobhy replied that was her own business, she was hit in the face, multiple times. According to an article by Aid to the Church in Need (ACN) the police denied Mrs. Sobhy the right to file a case report, but rather insisted that she reconcile with her attackers:
“When I insisted on filing a report, they [the police] threatened to detain me.”
Mrs. Sobhy turned to the Egyptian National Council for Women (and the Interior Minister and the Egyptian President), hoping they would protect her and intervene on her behalf, but just as previously happened at the police station, she was pressured to reconcile with her attackers.
Nobody has been punished for the assault on Mrs. Sobhy.
According to ACN:
“Assaults on women and girls who don’t wear the hijab are frequent in Egypt, especially during the month of Ramadan, when Islamic hardliners consider it mandatory.”[21]
[21] Dahlmans, op cit
Looking at the situation of women more broadly and in the context of gender-based violence, ‘Violence against women and rampant sexual harassment persist in Egypt. According to the nonpartisan research network Arab Barometer, in the Arab World, Egypt ranks first in sexual harassment with 63% of women reporting some form of sexual harassment.’[22]
[22] Reported in Congressional Research Service report Egypt: Background and U.S. Relations
The most up to date targeted country information for decision makers on the situation in Egypt for Copts is from the UK Home Office. In its high-level summary, the report notes:
3.1.1 Christians in general are unlikely to be subject to treatment or discrimination by the state and societal actors that is sufficiently serious, by its nature or repetition, to amount to persecution.
3.1.2 But the following profiles may be at risk of persecution:
• Christians in some areas outside large cities where radical Islamists continue to have a foothold – notably Upper Egypt, rural areas and poor urban areas – although there is no recent evidence of largescale attacks or incidents against Christians
• Christian women aged 14 to 25 years old without a male protector
Relevantly, the applicant is not aged between 14 and 25 years old.
The 2025 World Watch List, a ranking of countries where Christians face persecution, states, ‘However, (sexual) harassment of women remains common and, despite the president's inclusive rhetoric, sectarian violence and religious discrimination remain problematic.’[23]
[23] World Watch Research, ‘Egypt: Persecution Dynamics January 2025’, Open Doors
Considerations
The applicant has experienced repeated gender and religious based assaults and discrimination through her life while living in Egypt. While the past can inform considerations of the circumstances into which the applicant will be returning to, it is not pre-ordained. It is important to consider the specific circumstances of the current context.
The country information detailed above focuses on the intersection of gender and religious based sexual violence. While it is clear that there is limited reporting on this, it is for the Tribunal to determine whether that is because there are few instances or other reasons are driving this situation.
I am satisfied that the Coptic Solidarity reporting is reliable. The language used to describe the circumstances was tempered and the author acknowledged that they were dependent upon anecdotal evidence and lacking quantitative data. The value of this report to this decision is in the individual stories and wider narrative.
More broadly there are reports that discuss the targeting of Coptic women for reasons of their faith including by way of grooming, deception and forced conversion.[24] That there is a social undercurrent among a portion of the Egyptian population that sees the sexual targeting of Christian women as acceptable is strongly supported by the evidence.
[24] Mariz Tadros, ‘Chapter 5: Of Her Own Accord? Making Sense of Egypt’s Coptic Women Gone Missing’ in Ideologically Motivated Sexual Grooming, 2025
The question arises whether the applicant faces a real chance of being a target into the reasonably foreseeable future.
On the one hand, the shear size of the Coptic population, some 9% of the overall population suggests that she would be able to live apart from Muslims. But the reality of Cairo is different. There aren’t Christian quarters and Muslim quarters.[25] They are highly integrated. Even those historical Christian suburbs such as, Heliopolis, where the applicant comes from, according to the applicant, has a large minority of Muslim residents. I note that it is the intention of the government to continue to integrate the two populations including by ensuring that each new suburb that is developed has a church.[26] As such, it’s not simply a matter that the applicant could live her life apart from Muslims.
[25] Cultural Atlas, SBS, Egyptian Culture
[26] >
With regards to the UK Home Office report. The applicant is [age] years old. She was last sexually assaulted when she was [age] years old. While I accept that there is a target group that is most likely to experience harm due to their age and religion, this cannot be applied as a definitive marker. Some [age]-year-olds will look 25 years old, some male aggressors will not be deterred by the age of their victims. As such, while I accept that younger women are at greater risk, I also accept that as the applicant has an appearance of a younger woman, she could be equally susceptible to being targeted.
The sheer extent of sexual harassment in Egypt is an underlying factor in assessing the risks the applicant faces. A UN Women report found 91% of women have experienced unwelcome physical contact.[27]
[27] >
Yet, the lack of data about the intersection of gender and religion is of concern. Egypt has a large civil society and is the focus of considerable international attention. There are many faith-based NGOs that focus on human rights’ violations against Christians. How can we reconcile the claims of the applicant, and the conclusions reached by Coptic Solidarity with the lack of other sources of alarm? In part the Coptic Solidarity report attempts to answer this question by noting the government doesn’t collect such information, which I accept as it would only serve to highlight fractures in society—something the Sisi government is eager to avoid. There are also claims of shame and fear that drive underreporting.[28] But it would also require some distinct effort to turn a blind eye by international human rights groups, not so much a conspiracy, but possibly a lack of interest or a degree of prejudice. Where are the reports from Human Rights Watch and Amnesty International or from groups that advocate for the rights of women? The answer, I suspect lies in a lack of resources to turn towards these issues alongside a prejudice against Christian claims of victimhood. Regardless of the reason, the absence of reporting cannot serve as evidence of the absence of human rights violations—a truism evident throughout history.
[28] Aid to the Church in Need, ‘Hear Her Cries: The kidnapping, forced conversion and sexual victimisation of Christian women and girls’, and >
Because of the lack of data, I place greater weight on the applicant’s lived experiences and note that the UK Home Office report, which acknowledges persecution, but only to a certain age group, cannot be applied rigidly.
It is also relevant to note the general prevalence of gender-based violence in Egypt. As I have noted, there is a basis to a claim among Christian advocacy groups that there is generalised sexual violence and on top of that there is targeted sexual violence against Christians. In considering the applicant’s circumstances she is at risk not only from religiously motivated violence but also from generalised gendered violence.
The applicant will be returning to Egypt without a male family member. I find that returning without male protection will substantially exacerbate the applicant’s risks.
The applicant is also a practicing Christian which means that she will be attending church and participating in Christian public facing events. As noted, while the situation has improved, there continue to be targeted attacks on Christian places of worship and against individual worshippers.
None of these sources of harm will individually impact the applicant such that she faces a real chance of serious harm but when considered cumulatively the situation she faces changes. The applicant is extremely vulnerable psychologically and emotionally. Sexual harassment such as taunts and derogatory remarks will impact her substantially more than it would other women. As a single woman and a Christian who does not wear a hijab she will be propositioned and verbally abused and, I find, there is a real chance she will be physically assaulted. The extent of the assault may not amount to serious harm to others but noting the ongoing repeated harm from lesser threats to her safety on top of her past experiences and then being physically assaulted, I find leads to the applicant facing a real chance of serious harm.
I find that gender and religion are the essential and significant reasons for the harm (s 5J(4)(a)).
In considering whether the harm she faces is systematic and discriminatory (s 5J(4)(c)) I note that the country information described above describes an intention targeting of women for various reason all of which are systematic and discriminatory.
With regards to state protection, I note that country information referenced above describes substantial efforts by the authorities to minimise religious tensions and to protect the status of Christians within the community. Similarly, considerable effort has been undertaken to improve legislative protections for women alongside ongoing information campaigns[29]. These efforts aim to change the way Egyptian men and women behave. This sort of action is an effort at prevention, but it cannot be considered protection. While the authorities deploy police to churches to ward off would be attackers, nothing of the sort can be done to protect women, such as the applicant, from the threats identified. As such I find that the applicant cannot receive protection from the state that is sufficient to meet the threshold under the Refugee criteria (5J(2)).
[29] The Making of Egypt’s Personal Status Law: An Opportunity for Meaningful Gender Reform or a Contested Field of Power Struggle? >
I also find that the applicant cannot modify her behaviour as any action that she would be required to undertake to reduce the risk to less than a real chance would breach 5J(3)(a) and (b) in that her religion and gender are characteristics that are fundamental to her identity and conscience and innate, respectively.
With regards to relocation, there are certain suburbs in Cairo that are historically Christian[30], they are not exclusively Christian, and the applicant would need to travel for work or to seek support from extended family members. Some of these suburbs are large such that it could be possible to limit her life to the boundaries, but I find it would not be reasonable especially when considering the future of the second named applicant. As such, I find that the applicant cannot relocate (s 5J(1)(c)).
[30] >
I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Egypt have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The second named applicant is [an age]-year-old [child]. Some claims were made including that [he/she] suffers from asthma and that [he/she] is ‘deeply integrated’ into life in Australia. But even were any of these to lead to the second named applicant to face serious or significant harm, which, I find that they do not, based on the material before me and the nature of the submissions made by the representative, there is no refugee nexus nor any intentionality of harm that is required by law.
The Representative made submissions about the relevance of considering the ‘best interests of the child’. I was not persuaded that this approach is the correct approach and noting that the second named applicant meets the criteria as a member of the family unit, I have not engaged with this further.
The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant who is the [child] of the primary applicant is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of [his/her] application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing:   15 August 2025
Representative:   Lidia Soliman
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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September 12, 2024 p8