2318857 (Refugee) - [2024] AATA 3189

2318857 (Refugee) [2024] AATA 3189 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2318857
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Jason Pennell
DATE:18 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 January 2024 at 9.50am

CATCHWORDS
REFUGEE – protection visa – Egypt – religion – Coptic Orthodox Christian – particular social group – Coptic Orthodox Christian convicted of a serious crime – economic hardship – ostracism – fear of harm by relatives and Muslim community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 56, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
NAQJ v MIMIA [2004] FCA 946
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 57
VCAD v MIMIA [2004] FCA 1005
WZAOO v Minister for Immigration [2012] FMCA 1026

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

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a citizen of Egypt, applied for the visa on 6 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant appeared before the Tribunal on 21 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Fr A] and [Mr B].
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

CRITERIA FOR A PROTECTION VISA

5.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.
6.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–5LA, which are extracted in ‘Annexure B’ 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 ‘Annexure B’ to this decision.

Mandatory considerations

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

APPLICANT’S CLAIMS AND EVIDENCE
Identity and country of reference

The applicant stated in his application for a Protection visa that he was born on [date] in Cairo, Egypt.[1] The applicant provided a copy of the biodata page of his Egyptian passport to the Department.[2] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[1] Protection visa application form, Department file [number], Doc ID: [number]
[2] Dept File No [number] Doc ID: [number]
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Egypt and as such his protection claims will be assessed against Egypt as the country of reference and ‘receiving country’ respectively.

Migration history

The applicant’s movement records[3] indicate that he first entered Australia on [date] June 2000 on a Tourist Subclass 676 visa and has not departed since. The applicant submitted the Protection (XA-866) visa application currently under review on 6 September 2023. The applicant has not travelled outside of Australia since his arrival.

The applicant’s claims

[3] Department Movement Details dated 1 December 2023, Tribunal file 2318857, Doc ID: 11849160

The applicant’s protection claims are detailed in his protection visa application[4] as follows:
[4] Protection visa application form, Department file [number], Doc ID: [number]
Provide reasons why this applicant left that country or those countries:
I will be dead in Egypt as its Islamic country.
Does this applicant move or try to move to another part of that country or those countries to seek safety?
No. I left country and fly to Australia
Explain what the applicant thinks will happen to then if they return to that country or those countries:
I be dead
Does this applicant think they will be harmed or mistreated of they return to that country or countries?
Yes. Yes I be dead.
Does this applicant think the authorities of that country, or those countries can and will protect this applicant if they go back?
No. Islamic country do not care about orthodox.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No. As it is an Islamic country.
The delegate summarised the applicant’s claims as follows:[5]
·The applicant will be dead in Egypt as it is an Islamic Country.
·     Islamic country do not care about orthodox.
·     The applicant would not be able to relocate within the country because it is an Islamic County.
[5]    Protection Visa Decision Record dated 20 November 2023; Dept File No [number], Doc ID [number].
On 25 September 2023, pursuant to s 56 of the Act, the delegate invited the applicant to provide additional information in support of his claim (‘the s 56 invitation’). In response to the s 56 invitation the applicant provided a submission to the Department which was summarised by the delegate as follows:
·Besides their church involvement, one of the most important reasons for them not returning to Egypt is the community and the family threat of rejection and revenge due to their sentence.
·     It is likely they would be killed as soon as they return for revenge.
·     The applicant’s children are unaware of the reason they were in the gated community.
·     Their family is likely to disown them due to community pressure in Egypt.
·     People have consequences of getting stoned to death in cases of adultery and murders.
·     The family is a great threat as there is a great revenge motive.
·     Being in jail for 21 years, they have no contacts back home and their ability to survive is completely zero.
·     The tragic event still haunts them and going back to Egypt will ruin their mental state and make the suicidal.
On 5 October 2023 the applicant provided further submissions to the delegate.[6] The delegate summarised the applicant’s submissions as follows:
·This who are accused and jailed for murder are rejected by the Egyptian society, morally, emotionally and their lives are in danger.
·     Community justice or tribal revenge is a clear, threatening and present risk for the applicant and their family.
·     The applicant will be disowned by their family and may take action on the applicant as revenge due to the community pressure or the risk to their lives as a result of the applicant’s presence. The family may be targeted as a result of the applicant’s existence in the community and will not be able t work, live, study and engage in everyday life.
·     The event haunts the applicant and going back to Egypt will lead to definite suicidal mind frame.

Applicant’s documents

[6] Church Detailed Reference letter; Dept File No [number], Doc ID [number].

The applicant provided the following documentation:
·Letter of support from the Priest.[7]
·Character reference by [Mr C] dated 29 September 2016.[8]
·Various certificates of academic completion and participation.[9]

Applicant’s evidence
[7]    Ibid.
[8]    Character Reference by [Mr C] dated 29 September 2016; Dept File No [number] Doc ID: [number]
[9]    Dept File No [number], Doc ID’s: [number] - [number]

The applicant was born on [date] in Cairo, Egypt. The applicant claims that he is a Coptic Christian and that he can read, speak and write Arabic.
The applicant’s mother and father have passed away. The applicant’s father worked as a [Occupation 1] and passed away approximately 30 years ago. His mother was engaged in home duties and died in 2012.
The applicant had [number] brothers and [number] sisters. [Number] brothers (one of whom has died) and [number] sisters live in Australia. The applicant has one brother and one sister who remain living in Egypt. His brother in Egypt is a [Occupation 2] in the Coptic Church. His sister in Egypt works as a [Occupation 3].
Th applicant attended school in Cairo. The applicant completed the equivalent to Year 10 at school after which he commenced work for a company known as [Company 1] engaged in the installation, repair and maintenance of [Product 1]. While employed with the company the applicant attended [trade school]. The applicant worked for the company for 10 years prior to travelling to Australia.
The applicant was married on 16 November 1998 and has two [daughters]. The applicant’s wife and daughters live in Cairo, Egypt. The applicant’s wife works in a [factory]. His eldest daughter works as a [Occupation 3] in Cairo. The applicant’s youngest daughter was born in Australia and is currently attending university in Cairo.
In or about 2000 the company the applicant was working for collapsed. As a result, at the suggestion of one of his brothers, the applicant travelled to Australia to visit his mother and siblings. The applicant’s evidence was that he loved Australia because religion was not an issue like it was in Egypt. The applicant’s brother suggested that he study in Australia with the aim of making an application for permanent residency. As a result, the applicant studied English at [a College] in Melbourne. The applicant’s evidence was that his wife and eldest daughter then travelled to Australia to support him.
The applicant’s evidence was that while he was in Australia, he had an affair with his brother’s wife. Ultimately, despite the applicant’s claim that his brother committed suicide, he was charged and convicted of his brother’s murder on [date]. The applicant was sentenced to [years] in prison. The applicant was granted parole after [years] in prison but claims that he chose to remain in prison out of fear of being returned to Egypt.
After the applicant was charged with his brother’s murder his wife returned to Egypt with his daughters. The applicant’s evidence was that his youngest daughter was born in Australia approximately about 3 months prior to his wife and daughters’ return to Egypt. As a result, the applicant has not seen his daughters since their return to Egypt. His evidence was that he has only seen his youngest daughter on two occasions, being at her birth and once in jail when she was about 3 months old.
The applicant claims that because he committed adultery with his brother’s wife and has been convicted of his brother’s murder he will be seriously or significantly harmed upon his return to Egypt. The applicant claims because he committed adultery with his brother’s wife, her family will seek to harm him if he is returned to Egypt. In addition, he claims that because of his criminal conviction upon his return to Egypt he will be rejected by Egyptian society and in particular those members of the Coptic Christian faith. As a result, he fears being physically harmed including being killed. In addition, he claims that because of his age and the time he has spent in prison he will suffer serious harm by reason of his economic circumstances because he would be unable to earn a living and would be denied basic services.

COUNTRY INFORMATION

In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the latest DFAT report on Egypt dated 17 June 2019 (the DFAT report)[10] with relevant extracts marked as ‘Annexure A’ to this decision.
[10] DFAT report at p.17.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision should be affirmed.

Credibility

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In this case, the applicant appeared before the Tribunal in person to give evidence. Nevertheless, the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[11] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[12]
[11] Section 5AAA, Migration Act 1958.
[12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[13] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p.482.
[14] The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

Refugee

Applicant’s relevant grounds

The applicant submits[15] that his claims fall within the scope of s 5J(1) of the Act by reason of his religion as a Coptic Orthodox Christian. The question of whether an applicant has a well-founded fear of being persecuted for reasons of his religion can arise in a variety of circumstances, including the application of general religious-based laws, departing from orthodox beliefs, conversion, apostasy[16] and mixed marriage. Whether the relevant nexus exists will often depend on the motivation of the persecutor.[17]
[15] Letter SM Lawyers dated 21 August 2019 at p.3; AAT File 1609946, Doc ID 6140280
[16] WZAOO v Minister for Immigration [2012] FMCA 1026 at [12], citing W161/01A v MIMA [2002] FCA 285 in which it was noted that an apostate does not require conversion from one faith to a different faith, but does require abandonment or rejection of the first faith.
[17] VCAD v MIMIA [2004] FCA 1005 at [35] where the Court held that where an applicant avoided military service for religious reasons may have a well-founded fear of persecution where there is an indirect discriminatory effect for reasons of religion.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[18] as:
71The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.
[18] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73], < type="1">
In Prashar v MIMA,[19] when considering the Refugee Convention, the Federal Court held that persecution ‘for reasons of religion’ can be persecution because the applicant does not have a particular religion or because the applicant’s conduct offends the religion of the alleged persecutors.[20] In addition the Court held that the Refugee Convention definition was not limited to people holding a religious belief but extended to non-believers.[21] Justice Madgwick stated:
if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.[22]
[19]   Prashar v MIMA [2001] FCA 57.
[20] ibid.
[21] ibid.
[22]   Prashar v MIMA [2001] FCA 57 at [19]. His Honour added that if there is anything in Awan v MIMA [1998] FCA 435 to the contrary, he believes it to be clearly wrong and would not follow it. An appeal was dismissed by the Full Federal Court on other grounds without considering Madgwick J’s reasoning on non-believers: Prashar v MIMA [2001] FCA 1119 and Prashar v MIMA (2001) 115 FCR 197.
Persecution on the ground of religion does not necessarily involve a clash of religious doctrines or of persons of one religion seeking to persecute those of another. In NAQJ v MIMIA,[23] Branson J held that if an applicant did not wish to comply with all the rites and customs of Islam (that is, she did not accept a ban on living in de facto relationships), it was open to the Tribunal (subject to s 91R of the Act), to conclude that any persecution the applicant faced was because of her religion.[24]
[23] NAQJ v MIMIA [2004] FCA 946 at [16].
[24] NAQJ v MIMIA [2004] FCA 946 at [18]. See also SCAT v MIMIA [2002] FCA 962 at [33] where the Court held that a well-founded fear of persecution could arise for reasons of religion if the risk of harm arose for reasons of the religion of the persecutors and their disposition, by reasons of their religion, towards the asylum seeker. On appeal, the Full Federal Court overturned this decision, however, the discussion of persecution for reasons of religion was not disturbed: SCAT v MIMA [2003] FCAFC 80.
In this case, [Fr A] of [Coptic Orthodox Church 1], Victoria gave evidence to the Tribunal in which he confirmed that the applicant is a member of the Coptic Orthodox Church (‘the Church’). In addition, [Fr A] provided letters dated 5 October 2023[25] and 14 June 2023[26] in which he confirmed that the applicant was a member of the Church. Based on the evidence presented to the Tribunal, it accepts and finds that the applicant is a member of the Coptic Orthodox Church as claimed. As such, the Tribunal accepts that the applicant’s claims fall within the scope of religion pursuant to s 5J(1) of the Act.
[25] Letter by [Fr A] [Coptic Orthodox Church 1] dated 5 October 2023; AAT file No 2318857 Doc ID 11795804.
[26] Letter by [Fr A] [Coptic Orthodox Church 1] dated 14 June 2023; AAT file No 2318857 Doc ID 11795805
It was open to the applicant to claim that he is a member of a particular social group (PSG) for the purposes of s 5J(1)(a) of the Act. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L provides:
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.

To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or it is fundamental to a member’s identity or conscience or distinguishes the group apart from society.[27]
[27] Section 5L of the Act.
In this case the applicant is a Coptic Orthodox Christian who has been convicted of a serious crime. The applicant claims that if he is returned to Egypt, he will be seriously harmed due to his religion and because he has been convicted of a serious crime. The applicant claims because of his criminal conviction he will be excluded from society and the Church. Due to his limited economic resources, he will be seriously harmed if returned to Egypt by reason of the fact that he would not have the capacity to support himself or earn a living. In addition, the applicant claims because of his affair with his brother’s wife he will be harmed by members of her family upon his return to Egypt.
The Tribunal accepts that the applicant’s religion is a characteristic that is innate or immutable and is fundamental to the applicant’s identity or conscience and distinguish the group from the rest of society as required under s 5L(c) of the Act. However, the Tribunal has some doubt that his criminal conviction constitutes such a characteristic for the purposes of s 5L(c) of the Act. Nevertheless, the Tribunal accepts that the applicant is a member of a PSG.

Applicant’s well-founded fear

Section 5J of the Act states that for the purposes of application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[28] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[29]
[28] (1989) 169 CLR 379 at 396.
[29] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear as a question of fact. In this case based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Egypt.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[30]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[30] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:[31]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[31] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if he is returned to Egypt by reason of his religious beliefs as a Coptic Orthodox Christian. The Tribunal also does not accept that he has a well-founded fear of persecution on an objective basis if he is returned to Egypt by reason of his criminal convictions and economic circumstances as claimed.

Accepted facts

Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant, the Tribunal accepts and finds that:
(a)the applicant was born on [date] in Cairo, Egypt.[32]
[32] Protection visa application form, Department file [number], Doc ID: [number]
(b)the applicant is an ethnic Egyptian and a Coptic Orthodox Christian.
(c)the applicant states that he reads, writes and speaks Arabic.
(d)the applicant’s mother and father have passed away.
(e)the applicant had [brothers] and [sisters].
(f)the applicant attended school in Cairo.
(g)the applicant worked for a company known as [Company 1] prior to travelling to Australia.
(h)the applicant was married on 16 November 1998 and has two daughters.
(i)the applicant was charged and convicted of his brother’s murder on [date].
(j)the applicant has served [number] years in prison.

Applicant as a Coptic Orthodox Christian

The applicant claims that if he is returned to Egypt there is a real chance he will be seriously harmed as a Coptic Orthodox Christian (Copt). [Fr A]’s evidence to the Tribunal was that the applicant is a member of the Coptic Orthodox Church in Melbourne. [Fr A]’s evidence was that the applicant attended [Coptic Orthodox Church 1] with his family prior to him being sentenced to prison and that he continued to visit the applicant while he was in prison. [Fr A] also confirmed the applicant’s evidence that his brother in Egypt is a [Occupation 2] within the Coptic Orthodox Church in Cairo. Therefore, based on [Fr A]’s evidence the Tribunal accepts that the applicant is a Coptic Orthodox Christian as claimed.
The country information[33] reports that Egypt is one of the oldest centres of Christianity in the world, Christianity having been established in Egypt in the first century. The vast majority of Christians in Egypt are members of the Coptic Orthodox Church and make up Egypt’s largest and most significant minority population.[34] They are the largest population of Christians in the Middle East. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the northern part of Egypt) and in major cities such as Cairo and Alexandria. It’s reported[35] that Egyptian Christians are politically and socio-economically diverse. They work in varying professions and range from the very poor to the wealthy.[36] Christians generally dress similarly to Muslim Egyptians, while in urban areas, Christian women are more likely than Muslim women to leave their hair uncovered.[37]
[33] DFAT report at p.20
[34] Harvard Divinity School, ‘Coptic Christianity in Egypt’ 2023, < DFAT report at p.20
[36] ibid
[37] ibid
Nevertheless, it’s reported[38] that Coptic Christians do suffer from systematic discrimination as they tend to be underrepresented in government positions, including in the education system.[39] The taxes paid by Copts are used to fund Mosques, Muslim schools and universities and Imams rather than Christian organisations.[40] In addition, it is reported[41] that discriminatory restrictions are applied by local authorities in relation to the construction and repair of churches by the imposition of difficult and drawn out building permit processes. Local government authorities have closed at least 25 churches and church-related facilities since 2016.[42]
[38] Religion Unplugged, ‘Are Egypt’s Christians Persecuted? Why some Copts say No’, Paul Marshall, 15 January 2021, < ibid
[40] ibid
[41] ibid; DFAT report at p.17
[42] Religion Unplugged, ‘Are Egypt’s Christians Persecuted? Why some Copts say No’, Paul Marshall, 15 January 2021, <http.religionunplugged.com/news/2021/1/15/are-egypts-christians-persecuted-why-copts-say-no>

The country information[43] reports that in June 2012 Mohammed Morsi of the Freedom and Justice Party (‘FJP’) was elected president of Egypt. The FJP is the political wing of the Muslim Brotherhood (‘the Brotherhood’). It’s reported[44] that at that time Christians in Egypt were apprehensive about the ascendency of the Muslim Brotherhood after the 2011 Revolution. However, large-scale protests occurred across the country against President Morsi, criticising his authoritarian rule and inability to improve the economic position of the country.[45] In July 2013 a military intervention removed Morsi from power and installed an interim military regime. The security forces violently suppressed pro-Morsi demonstrators and re-designated the Brotherhood as a terrorist organisation.[46] The DFAT report[47] states that most, if not all, NGOs affiliated to the Brotherhood have either been shut down, had their assets seized and/or had their board replaced with government appointees. While the Brotherhood was weakened by the government’s crackdown, it lost broad support because of its incompetence while in power, and because of the anti-Brotherhood propaganda under President Sisi.[48] Nevertheless, the Brotherhood retains a core support of around 20 per cent of the population.[49]

[43] DFAT report at p.7

[44] DFAT report at p.20

[45] Ibid

[46] Ibid

[47] DFAT report at p.24

[48] ibid

[49] ibid

In 2013, General Sisi overthrew the Muslim Brotherhood government. The country information[50] reports that while conditions could be better,[51] Christians and other minority faiths consider that they are better protected under President Sisi than previous Egyptian leaders. In 2015, Sisi became the first Egyptian head of state to attend Christmas mass at St Mark’s Cathedral in Cairo. He has actively engaged in the Christian community and has continued to attend the Christmas mass each year.[52]

[50] ibid

[51] ibid

[52] ibid; Religion Unplugged, ‘Are Egypt’s Christians Persecuted? Why some Copts say No’, Paul Marshall, 15 January 2021, <>

In 2017 Amnesty International[53] reported that successive Egyptian governments failed to tackle a longstanding pattern of discrimination against Copts and rising incidences of sectarian violence, by bringing those responsible for sectarian crimes to justice. Instead of prosecuting those behind such violent attacks the Egyptian government under President Sisi has relied on state-sponsored reconciliation agreements, which in some cases have involved forcibly evicting Coptic Christians from areas where they are under threat.[54]

[53] Amnesty International, ‘Egypt: Government must protect Coptic Christians targeted in string of deadly attacks in North Sinai’, 1 March 2017, < ibid

Nevertheless, in 2020 the US Commission on International Religious Freedom (USCIRF) removed Egypt from its recommended category of ‘Countries of Particular Concern (CPC)’, its list of the world’s worst religious persecutors.[55] It recommended that it be added to the US State Department’s Special Watch List (SWL). Countries on the SWL are those whose governments tolerate or engage in severe religious freedom violations, but do not rise to the CPC standard of ‘systematic, ongoing, and egregious.’[56]

[55] Religion Unplugged, ‘Are Egypt’s Christians Persecuted? Why some Copts say No’, Paul Marshall, 15 January 2021, <http:religionunplugged.com/news/2021/1/15/are-egypts-christians-persecuted-why-copts-say-no>

[56] Ibid

The USCIRF reports[57] that there have been positive trends toward religious freedom in Egypt. These have included President Sisi’s regular attendance at Christmas mass and his advocacy for religious inclusivity.[58] In addition, the Ministry of Education has sought to reform the public-school curriculum to eliminate intolerant references and promote inclusivity and respect (although it is reported[59] that the level of progress has been unclear). Further[60] government initiatives have supported efforts to revitalise several important non-Muslim religious heritage sites, including the completion of a project to restore the fourteenth century Eliyahu Hanavi Synagogue in Alexandria as well as ongoing projects to restore Christian monasteries in the Sinai and Naga Hammadi. Finally, several court cases have resulted in the conviction of perpetrators of religiously motivated violence, including the conviction of a police officer for killing two Coptic men in front of a church in Minya in late 2018.[61]

[57] United States Commission on International Religious Freedom, Annual Report 2020 p.66, < ibid; DFAT report at p.24

[59] ibid

[60] ibid

[61] ibid

Despite those positive signs, religious discrimination remains, including a disparity in policies regarding places of worship, a lack of opportunities for non-Muslims to work in key areas of government service, state security harassment of former Muslims, and recurring incidents of anti-Christian violence, particularly in rural areas. For example, in April 2019 the Coptic Orthodox Church in Naga al-Ghafir in Sohag was closed by security forces after Muslim rioters surrounded the church, chanted sectarian slogans and beat congregants with sticks.[62]

[62] Egyptian Initiatives for Personal Rights, Press Release, 19 April 2019, <>

In addition, it’s reported[63] that Copts have suffered persecution from Islamic extremists including ISIS which has targeted them and massacred over 100 people in recent years. In the wake of the 2011 Revolution, there was a decline in law and order in Egypt resulting in an increase in violent crime, civil unrest and terrorist attacks.[64] The significant growth in communal violence affected the Christian community with a number of attacks on the Christian community[65] including an attack on St Mark’s Cathedral in Cairo in December 2016 by a suicide bomber that killed 29 and injured 40 people.[66] On 9 April 2017, there were two attacks on Palm Sunday Services in Tanta (killing 27 people and injuring over 70) and Alexandria (16 people were killed and 66 people were injured).[67] In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith.[68] In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing 7 and wounding 19 people.[69] It’s reported[70] that a number of attacks have been thwarted by the security forces. A strong emphasis on internal security has largely restored general law and order throughout most of the country.

[63] Religion Unplugged, ‘Are Egypt’s Christians Persecuted? Why some Copts say No’, Paul Marshall, 15 January 2021, <http:religionunplugged.com/news/2021/1/15/are-egypts-christians-persecuted-why-copts-say-no>

[64] DFAT report at p.13

[65] ibid

[66] DFAT report p.18

[67] Huffpost, ‘Who are Egypt’s Coptic Christians and what do they believe?’, 10 April 2017, Antonia Blumberg, < ibid

[69] ibid

[70] ibid

The DFAT report[71] assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature and is likely to vary considerably according to geographic location. It’s reported[72] that Coptic Christians face an uncertain future in Egypt, as the country’s authorities have consistently failed to protect them from the bigotry and prejudice of extremist Islamists. Nonetheless, its reported[73] that Coptic Christians continue to be active in Egyptian political and social life. Egyptian Copts were among the hundreds of thousands who protested during the Arab Spring, during which powerful images of Coptic Christians protecting Muslims praying and Muslims protecting Coptic Christians at prayer suggested feelings of nationalist revolutionary solidarity. However, such images were marred by Coptic Churches being bombed in October 2011 following a protest in Cairo against the destruction of a Coptic church in Aswan, in which the Egyptian military and police, killed 28 people.[74]
[71] DFAT report at p.21
[72] Inside Arabia ‘The Copts: Egypt’s Overlooked and Persecuted Minority’, Soukaina Rachidi, 29 April 2019, http:insidearabia.com/copts-egypt-overlooked-persecuted-christian-minority/>
[73] Harvard Divinity School religion and Public Life, ‘Coptic Christianity in Egypt.’ 2023;
[74] ibid
In this case the applicant’s evidence was that he travelled to Australia after the company he worked for collapsed to visit his family. Prior to traveling to Australia, the applicant had lived and worked in Egypt without incident. The applicant has a brother and sister who remain living in Egypt in addition to his wife and children. There was no evidence that any of the applicant’s family members, including his brother who is a [Occupation 2], have suffered persecution or serious or significant harm from the Egyptian authorities. Nevertheless, based on the available country information the Tribunal accepts that the applicant may be subjected to social discrimination if he is returned to Egypt, but does not accept that such discrimination will amount to serious harm as claimed.
Therefore, based on the applicant’s evidence and the available country information the Tribunal finds that there is no real risk the applicant would be seriously harmed by the Egyptian authorities as a Coptic Orthodox Christian if he is returned to Egypt.

Applicant’s criminal conviction

The applicant claims that he will be seriously harmed if he is returned to Egypt because he has been convicted of a serious crime in Australia.
It was open to the applicant to claim that he fears being punished by the Egyptian authorities for his crime committed in Australia. The principle of double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction. The principle of double jeopardy appears to be implied by Part IV of the Egyptian Constitution[75] which provides that the rule of law shall be the basis of the exercise of public power in the State.[76] More specifically, Article 3 and Article 4 of the Egyptian Penal Code[77] provides that a criminal action shall not be taken against an accused in circumstances where a foreign court has acquitted the accused, or the accused has been convicted and served the sentence imposed. In this case the applicant has been convicted and served his sentence.
[75] Part IV Rule of law, The Constitution Of The Arab Republic Of Egypt, 1971
[76] Op Cit, Article 64
[77] Egyptian Penal Code (1937); <>
The Egyptian authorities have been known to exercise exceptions to the double jeopardy rule as a punitive measure against ‘dissenting voices’.[78] In October 2019 the human rights defender Ibrahim Metwally was cleared in court of all charges of being a member of and financing a terrorist organisation but was charged with the same offences in November 2019.[79] In addition, LGBT activists have long decried the retrials of gay men for ‘contempt of religion’ activities.[80]
[78] Mena Rights Group, ‘The practice of “rotation”: how Egypt keeps its dissidents in indefinite detention’, 14 December 2021, < United Nations, ‘Egypt must free Human Rights lawyer detained in “double jeopardy” case says UN expert’, 20 November 2019, < Huffpost, ‘Double Jeopardy in Egypt: Why should we care’, 7 December 2012, <>
However, in this case there is no evidence of the applicant having engaged in any political or social activities that would bring him to the attention of the Egyptian authorities. The country information reports[81] that the authorities in Egypt generally pay little attention to failed asylum seekers upon their return. It’s reported that thousands of Egyptians enter and exit the country daily, with those who have outstayed their visas in other countries regularly returning to Egypt.[82] Nevertheless, given that the applicant has been in Australia for a considerable period, the Tribunal accepts that the applicant may be questioned upon his return to Egypt. However, in circumstances where he has not been politically active and has been convicted and served his sentence, the Tribunal finds that there is no real chance the applicant will be seriously harmed by the Egyptian authorities due to his criminal conviction upon his return to Egypt.
[81] DFAT report at p.45
[82] Ibid
The applicant does claim that if he is returned to Egypt he will be rejected and ostracised by the Coptic Christian community because of his criminal convictions and as a result will suffer serious harm.[83]
[83] Applicant’s submission AAT File No: 2318857 Doc ID: 11795817

The country information reports[84] that Coptic Christians make up Egypt’s largest and most significant minority population and the largest population of Christians in the Middle East. It’s reported[85] that within the Coptic community a person’s immediate family can have a large effect on their thought process, interactional dynamics and overall perspectives later in life. Due to this minority status of the population, the Coptic community tends to be closely knit. Egyptian families tend to be large and individuals within the community lean more towards marrying those of their same background and ethnicity. This results in an extensive community web in which most individuals have some relation or some mutual relationships.[86] The tightly knit nature of the community as well as the network of individuals who know each other makes the issue of a person’s reputation of paramount importance.[87]
[84] ABC News ‘Who are Egypt’s Coptic Christians and why are they persecuted?’, Steven Viney, 10 April 2017, < Loma Linda University, ‘Mental Health in Coptic Orthodox Communities: Needs Assessment’, Marina Zaaky, September 2022, at p.20, < Op Cit at p.21
[87] ibid
The Coptic Orthodox community tends to be a traditional and conservative culture with which the members of the community are expected to conform.[88] As such a person’s reputation plays a large role within the population.[89] It’s reported[90] that events such as a person not attending college, conceiving a child out of wedlock or being arrested for something such as substance abuse can be characterised as a ‘scandal’ and send shockwaves through the community.[91] It’s reported[92] that due to the integrated web of familiarity amongst individuals, news of such ‘scandals’ travels quickly throughout the community.
[88] ibid
[89] ibid
[90] ibid
[91] ibid
[92] ibid
The applicant’s evidence was that he could not relocate to another area of Egypt, such as Alexandria, because the community is interlinked. As a result, the news of his criminal conviction would spread within the Coptic Christian community and be discovered in any part of Egypt. The evidence of [Fr A] was that due to the interpersonal relationships within the Coptic Christian community in Egypt there would be no place the applicant could avoid or hide the ‘scandal’ of his criminal conviction. As a result, there would be no way the applicant would be able to downplay or hide such a ‘scandal’ from the community. While the applicant’s evidence was that he would be excluded from the Coptic community, there was no evidence that he would be physically harmed or threatened because of his criminal convictions.
[Fr A]’s evidence was that, given the serious nature of the applicant’s criminal conviction and his affair with his brother’s wife, the applicant’s brother and sister in Egypt would not support him upon his return to Egypt due to their likely loss of reputation within the Coptic community. [Fr A]’s evidence was that even as a [Occupation 2], the applicant’s brother would be forced to exclude the applicant from the Coptic community to protect his own reputation.
In addition, the applicant claims that if he is returned to Egypt he will be ostracised by his wife and daughters because of the adverse effect he will have upon their reputations in Egypt. The applicant claims that his criminal conviction will adversely affect his wife’s reputation and any prospects of marriage for his daughters. He believes that upon her return to Egypt his wife downplayed the reasons why he had remained in Australia in order to protect her and his daughters’ reputations within the Coptic Christian community. The country information confirms that a person’s reputation will affect their prospects of marriage within the Coptic community.[93] It’s reported[94] that within the Coptic community even mild mental health issues such as mood disturbances or anxiety can affect a person’s reputation and their overall prospects of marriage. Therefore, based on the applicant’s evidence and the available country information the Tribunal accepts that if he is returned to Egypt, the applicant’s criminal conviction will have an adverse effect on his wife and his daughters’ reputations. However, while adverse to his wife and daughters, there appears to be no real chance the applicant will be seriously harmed due to his criminal conviction affecting their reputation as claimed.
[93] ibid
[94] ibid
Therefore, based on the evidence of [Fr A] and the available country information the Tribunal accepts that if the applicant is returned to Egypt his criminal history will become known within the Coptic Christian community resulting in him being shunned or ostracised from that community as claimed. While the Tribunal accepts that this would be extremely embarrassing and would cause the applicant considerable difficulty in integrating back into the community in Egypt, it does not accept that being ostracised from the Coptic Christian community as claimed would amount to serious harm to the extent that he would constitute a threat to his life or liberty, physical harassment or physical ill treatment.

Applicant’s economic circumstances

The applicant claims that if he is returned to Egypt he will be seriously harmed because of his economic circumstances. The applicant claims that if he is returned to Egypt, due to him being ostracised from the Coptic Christian community and his family, his capacity to subsist will be threatened by reason of him being denied basic services or being denied a capacity to earn a living of any kind.
The applicant’s evidence was that he is an elderly, unskilled person without financial resources. He claims that if he is returned to Egypt, he will be ostracised from the Coptic Christian community and as a result will not be able to find work. In addition, he claims that because of his criminal convictions he will not receive any economic support from his brother and sister nor from his wife and daughters due to their loss of reputation by being associated with him. Accordingly, he claims that he will suffer economic hardship to the extent that it would threaten his capacity to subsist, constituting serious harm.[95]
[95] Section 5J(d) of the Act.
However, the applicant is [age] years old. He completed the equivalent of Year 10 at high school and then work installing, repairing and maintaining [Product 1] for approximately 10 years. While working he attended [trade school]. In addition, while in prison the applicant has completed a range of vocational courses including a Certificate II in [Field 1] and pre-apprenticeship, Certificate in [Field 2], Certificate I in [Field 3] and Certificate II in [Field 4].[96]
[96] Academic Certificates AAT file No 2318857 Doc ID 11795807 – 11795815.
The Tribunal has accepted that if he is returned to Egypt the applicant will be rejected by the Coptic Christian community and by his family members including his wife and daughters. However, the Tribunal does not accept that the applicant will not be able to find employment in Egypt.
The country information reports that Egypt is a lower middle-income country.[97] It has relatively large tourism, agricultural and service sectors and derives substantial revenue for the Suez Canal.[98] It’s reported that military-owned companies have played an active role in the country’s economy. Under the Sisi administration the military has significantly broadened its economic profile supervising massive infrastructure projects, running food distribution networks and investing heavily in real estate and factory projects.[99] The country information reports[100] that Egypt’s longstanding challenges have been affected by various global shocks (including the Ukraine war) that has caused a foreign exchange crisis and rising inflation placing pressure on the country’s already stretched fiscal and external accounts. In response the Egyptian authorities have recently undertaken a series of policy adjustments, including raising key policy rates and allowing the exchange rate to depreciate substantially. In addition, various social mitigation measures have been introduced, including increases to pensions, food subsidies and expansion in the coverage and allocation of the cash transfer programs. In December 2022 an extension to the IMF Fund Facility was approved and is expected to support the gradual restoration of macroeconomic stability.[101] Egypt’s overall macroeconomic environment in FY2023/24 is expected to be undermined by the concurrent global shocks and domestic macroeconomic imbalances, before starting to improve over the medium term as the country continues to push ahead with stabilisation and structural reforms.[102] Reforms such as an enhanced trade policy and facilitation, effective implementation of the State Ownership Policy, fostering competition, strengthened governance and rule of law, and improvements in the broader business environment are expected to encourage private sector activity and increase employment.[103]
[97] DFAT report at p.8
[98] Ibid
[99] DFAT report at p.8
[100] The World Bank, ‘The World Bank in Egypt’, 23 October 2023, < ibid
[102] ibid
[103] ibid
The social security system in Egypt was developed in the 1950s and 1960s and includes social insurance, health insurance and social assistance mechanisms.[104] The expansion of social welfare in Egypt during this time relied heavily on the growth in government employment and the extension of social protection benefits to public sector employees. The casualisation of the labour market and the contraction of social insurance coverage, combined with the failure of social assistance programs to access the poor, have brought into question Egypt’s ability to provide basic welfare to its citizens.[105] Egypt’s aging population has placed great strain on the country’s socio-economic system.
[104] Gender and Work in the Mena Region Working Paper Series, ‘Social protection in Egypt: A policy overview’, Maia Sieverding and Irene Selwaness, September 2012, < Ibid.
In 2013 the Government of the Arab Republic of Egypt reformed its pension system, introducing the new Old Age Pension (OAP) scheme to provide basic income security more effectively to older persons. The pension scheme is under the National Organisation for Social Insurance (NOSI), which administers funds and benefits to claimants.[106]
[106] ESCAP, Social Protection Toolbox, Egypt’s Old Age Pension, <>
Egypt’s new OAP consists of both contributory and non-contributory schemes.[107] The contributory scheme is available to all residents aged 65 and above who have made contributions. Reforms in 2013 lowered contribution rates to 30.5 per cent, of which 19.5 per cent is paid by the employer and 11 per cent by the employee. Relatively high contributions are rewarded with very high monthly pension benefits equal to 75–88 per cent of the claimant’s last net salary before retirement, disability or death, calculated based on length of contributions.[108] The non-contributory scheme is available to all Egyptians aged 65 and above who reside in Egypt and do not receive any other income or pension from the State. Those eligible for the non-contributory scheme receive monthly payments equal to 18 per cent of the after-tax national salary.[109] At the time of the reforms 80 per cent of the workforce was enrolled in the OAP and in 2012, Egypt’s social security system covered 31 per cent of all residents.[110]
[107] ibid
[108] ibid
[109] ibid
[110] ibid
The applicant claims that he is elderly and will not be able to support himself in Egypt. While the Tribunal does not necessarily accept that the applicant at the age of [age] is elderly, it does accept that he presents as a more mature person in circumstances where he would be responsible for his own care and shelter. The country information reports[111] that more elderly Egyptians are living alone, causing more to live in poor conditions. There has been an increase in the number of nursing homes in Egypt over the last 20 years. There are approximately 145 homes and 200 elderly care organisations. The living conditions vary from cramped apartments to palatial suburban homes. However, it’s estimated that these homes only service about 2 per cent of the population.[112] As a result, care dependency has become a problem in Egypt, especially for lower- and middle-class members, due to economic restrictions and lifestyle changes.[113] As such, despite the efforts by the government, there are no tangible changes in the services offered to the elderly population in Egypt. It’s reported[114] that there is a lack of service provision and a lack of awareness towards geriatric care service in Egypt. Urbanisation and the change in the Egyptian demographics are exacerbating the problem. It’s claimed that Egypt now is becoming a nation of dignified older citizens that need additional care and special attention.[115]
[111] RESEARCHGATE, ‘OLD AGE AND INEQUALITIES IN EGYPT. THE ROLE OF INTERGENERATIONAL RELATIONSHIPS AND TRANSFERS WITHIN THE FAMILY’, JUNE 2013, < American Chamber of Commerce in Egypt, ‘Elderly Care On The Rise’, Maryclaire Abowd, < PUB MED.GOV, ‘AGEING, CARE DEPENDENCY, AND CARE FOR OLDER PEOPLE IN EGYPT: A REVIEW OF THE LITERATURE’, 14 SEPTEMBER 2005, THOMAS BOGGATZ, THEO DASSEN, < The American University in Cairo, ‘Vulnerable Older Populations Without Special Healthcare in Egypt: A need for Assessment & Reform’, 2019, Dr Mahmoud Nassar, Dr Sally Islam, Dr Shaimaa Sabbah, Dr Sondos Saied Mubarak, < ibid

Based on the available country information, the Tribunal accepts that care for elderly citizens in Egypt is under-resourced. However, there was no evidence to indicate that the applicant would not be able to access aged care in Egypt on the same level as other Egyptian citizens or that he would be specifically denied such services as a citizen in the event he was returned to Egypt. As a result, the Tribunal finds that the Egyptian authorities have not demonstrated systematic and discriminatory conduct towards the applicant in relation to his access to aged care facilities.
The Tribunal accepts that the applicant will experience some difficulty in re-establishing himself if he is returned to Egypt. The applicant is now [age] years of age. He has been in Australia for a considerable period, most of which was spent in prison. Nevertheless, the Tribunal does not accept he would be denied access paid employment given the fact that while he is of a mature age, he remains physically fit and healthy and has vocational training and skill. The Tribunal notes that the applicant can speak English and Arabic. In addition, he has been trained with the skills in [a trade] and has received instruction in various vocational courses while in prison. The report from the [Prison] states that he has a good work ethic and ‘goes above and beyond what is expected of him.’[116]
[116] Character reference by [Mr C] dated 29 September 2016, AAT File No 2318857 Doc ID 11795817
The Tribunal accepts the applicant’s claim that he will find it difficult to find employment because he will be isolated from the Coptic Christian community. The Tribunal acknowledges that the applicant has a genuine, personally held fear regarding the economic circumstances in Egypt including the cost of living being too high and the remuneration for work being too low. However, the Tribunal notes that the Coptic community represents only 10 per cent of the Egyptian community.[117] As a Coptic Christian the Tribunal accepts that he may experience some societal discrimination[118] (which may prevent him from obtaining more senior positions), however, there appears to be no reason why the applicant would not be able to access paid employment outside the Coptic community if he is returned to Egypt. As such, based on the claims made by the applicant and the available country information, the Tribunal finds that he will be able to access paid work in Egypt. Therefore, given the applicant’s prospects of finding work in Egypt, his circumstances do not amount to him facing harm that can be considered serious harm pursuant to s 5J(5) of the Act. That is, the Tribunal finds that any economic hardship the applicant will incur will not amount to serious harm in the sense that it would threaten his capacity to subsist. Further, the Tribunal finds that given the applicant is relatively fit and healthy and his motivation for work, he will not be denied the capacity to earn a living, nor would he be denied basic services, where such denials would threaten his capacity to subsist. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Egypt by reason of his economic circumstances as claimed.

Applicant’s affair

[117] ABC News ‘Who are Egypt’s Coptic Christians and why are they persecuted?’, Steven Viney, 10 April 2017, < DFAT report at p.21

The applicant claims that there is a real chance he will be seriously harmed if he is returned to Egypt because he had an affair with his brother’s wife. The applicant claims that her family remains in Egypt and blame him for having an affair with her and ‘ruining her life.’ The applicant claims that at the time he was convicted of his brother’s murder, he was told by her sister said that they would be ‘waiting for him.’
Nevertheless, the applicant’s evidence was that he had not had any contact with his brother’s wife or her family for over 20 years. His evidence was that she was also convicted of his brother’s murder but was released from prison many years ago. His evidence was that he does not know where she is now living. In addition, neither the applicant nor his brother, [Mr B], were able to identify for the Tribunal any member of their sister in laws family who may harm the applicant. The applicant’s evidence was that he had not had any contact with her family and had not received any threats in recent years.
Therefore, while the Tribunal accepts that the applicant’s sister in laws family may hold some animosity towards him, in circumstances where he has not received any threat in approximately 20 years, the applicant’s and [Mr B]’s inability to identify any member of her family who may harm him and the lack of any independent evidence to suggest that he would be harmed upon his return to Egypt by his sister in laws family, the Tribunal does not accept that there is a real chance he would be seriously harmed if he is returned to Egypt as a result of his affair as claimed.
The applicant’s evidence was that newspaper articles about his affair with his brother’s wife were sent to Egypt. The applicant did not provide copies of the newspaper articles to the Tribunal or identify who sent the articles to Egypt or to whom they were sent. In addition, the applicant claimed that because Egypt is a Muslim country the people would turn against him if he was returned to the country. The Tribunal has accepted that the Coptic Christian community would ostracise the applicant because of his criminal conviction and that he would also be ostracised by the community because of his affair with his brother’s wife. However, the Tribunal does not accept that he would suffer serious harm by the Muslim community because of his criminal conviction or because of the affair. While the applicant may suffer societal discrimination in Egypt as a Coptic Orthodox Christian from the Muslim community, there is no evidence to suggest that he would suffer serious harm on a systematic or discriminatory basis because of his criminal conviction in Australia and/or because of his affair with his sister in law. As such the Tribunal finds that there is no real chance the applicant will suffer serious harm from the Muslim community as a result of his affair with his brother’s wife as claimed.

Complementary protection criteria

The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In particular, the Tribunal has considered if there are any reasons to believe the applicant will face a real risk of significant harm if he is returned to Egypt arising from his religion as a Coptic Orthodox Christian and his economic circumstances, particularly in light of his criminal conviction and affair. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[119] The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
[119] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm because of his religion or as a result of his criminal conviction or because of his affair as claimed. In addition, the Tribunal has also made findings that the applicant does not face a real chance of serious harm because of the economic circumstances in Egypt in relation to his ability to subsist in light of his criminal conviction and affair in Australia. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of him being significantly harmed if he is returned to Egypt, including being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, for reasons based on the applicant’s religion or economic circumstances in light of his criminal conviction and affair.
As to the applicant’s economic circumstances the Tribunal notes that despite being [approximate age] the applicant is fit and healthy and capable of being employed. He has received vocational training in [a trade] and has completed various vocational courses while he was in prison. As a result, the Tribunal has already found that the applicant has the capacity to find work anywhere in Egypt. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself, it does not accept he will not be able to find paid employment anywhere in Egypt given his overall experience, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s 36(2A) of the Act.
Based on the available country information, the Tribunal finds there is no intention on the part of the Egyptian Government in its role of managing the economy in combination with market forces to inflict significant harm on the applicant, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of him being removed from Australia to Egypt. The Tribunal, accordingly, does not accept that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Egypt, based on his economic circumstances, including being subjected to cruel or inhuman treatment or punishment or being subjected to degrading treatment or punishment.
In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm of any kind.
At no stage did the applicant advance any other reason, such as his race or nationality in his written claims, that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is no real risk the applicant will suffer significant harm if he is returned to Egypt as a result of his economic circumstances in Egypt or criminal conviction or affair in Australia as claimed pursuant to s 36(2)(aa) of the Act.

CONCLUSION

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 the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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 criteria in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Senior Member

ANNEXURE A – EXTRACTS FROM DFAT REPORT ON EGYPT

RELIGION
3.2 No official statistics exist in relation to the breakdown of Egypt’s religious population. While estimates vary, most observers agree that Sunni Muslims comprise approximately 90 per cent of the population, Coptic Christians make up between eight and ten per cent, and the remainder consists of small numbers of other religious minorities, including Shi’a Muslims, Sufi Muslims (officially considered Sunni) non- Coptic Christians, Baha’i, and Jews. The government officially recognises three religions: Islam, Christianity, and Judaism.
Religious Conversions
3.7There is no statutory prohibition in Egypt on converting from one religion to another. In order to convert to Christianity, authorities require documents from the receiving church, identity documents and fingerprints. Checks are also made on criminal history as conversion often requires a change in name. Converts to Islam will generally have their conversions recognised and their identity cards changed accordingly without difficulty or delay. However, courts and government officials have generally interpreted sharia as prohibiting conversion from Islam. Authorities have at times reportedly refused to recognise such conversions, including through failing to amend a convert’s national identity card (and corresponding record) to reflect their chosen faith. This has significant ramifications for personal status issues, such as marriage and divorce, and the state’s view of the religious identity of any children born to a convert. Egyptian children obtain a national identity card at age 16, with their religious identity matching that of their parents (their Muslim parent, in the case of a mixed marriage between a Muslim man and Christian woman).
3.8A 2011 court ruling allowed Christians who converted to Islam and then back to Christianity (generally in order to more easily access divorce) to amend their identity cards to reflect their return to their original faith. DFAT understands, however, that only a small number of such individuals have been permitted to do so, and that several thousand others are still waiting to have their cards changed back.
3.9Converts from Islam to other religions are not generally subject to officially sanctioned violence, detention or surveillance. However, they face significant societal discrimination in the form of rejection, ostracism and sometimes violence from their families or communities. Such discrimination is worse in poorer and rural areas, which tend to be more socially conservative. The level of discrimination is likely to be higher if the convert engages in proselytization.
3.10DFAT is aware of anecdotal reports of Christian women and girls being abducted and forcibly converted to Islam. Such reports have occasionally led to increased tensions and clashes between Christian and Muslim communities, particularly when the alleged abductions involve family members of Christian priests. However, there is little evidence to suggest that forced conversions occur as a regular phenomenon. DFAT assesses that most religious conversions in Egypt occur either to enable a person to marry someone from another faith, or to access divorce.
3.11DFAT assesses that a person converting from Islam faces a moderate risk of official discrimination. They may experience difficulties in having their conversion officially recognised, including on national identity cards, which may affect their ability to access government or religious services. DFAT assesses that a person converting from Islam faces a high risk of societal discrimination in the form of rejection, ostracism and possible violence from their families and communities.
Terrorist Attacks on Christians
3.21In December 2016, a suicide bomber targeted a church service at a chapel adjoining St Mark’s Cathedral in Cairo, killing 29 and injuring 49. Following the previously mentioned February 2017 attacks in el Arish, IS claimed responsibility for two major attacks against Palm Sunday church services on 9 April 2017. The first attack occurred at a service in Tanta, killing 27 people and injuring over 70. The second attack occurred at a cathedral in Alexandria. At least 16 people were killed and 66 people were injured in the Alexandria attack: Pope Tawadros was saying mass at the cathedral at the time, but escaped unharmed. In May 2017 in Minya, a gunman opened fire on a bus and killed 29 people who refused to renounce their faith. In November 2018, militants ambushed three buses carrying Christian pilgrims to a remote desert monastery south of Cairo, killing seven and wounding 19. In addition to these attacks, security services have reportedly thwarted a number of attempted attacks.
Communal Violence
3.22Most Egyptians, especially those living in urban areas, work, live and socialise together with little regard to each other’s religious identity. However, small-scale disputes such as neighbourhood disagreements can on occasion adopt religious overtones and escalate into community-level violence, particularly in poorer and rural areas. Most communal incidents in Egypt take the form of vandalism and destruction of property. The large-scale anti-Christian violence that occurred in 2011 and 2013 notwithstanding (see Security Situation), high-profile incidents in which people are killed or churches attacked are not a frequent occurrence.
3.23A general breakdown in law and order nationwide occurred in the years following the 2011 Revolution, peaking in the period leading up to and immediately following the July 2013 military intervention, and again in the aftermath of the August 2013 dispersals of pro-Morsi protests in Cairo. On these occasions, Muslim Brotherhood members and supporters attacked Christian targets across the country, including churches, schools, and private property. A November 2014 government report into the anti-Christian violence found that 29 people had died in communal-related killings, 52 churches had been completely razed, another 12 damaged, and numerous Christian-owned properties destroyed. Most, but not all, of the incidents were marked by a slow police response, which may have been in part the result of police and security personnel being otherwise engaged in protecting government institutions. Large-scale anti-Christian violence ended with the declaration of a nationwide state of emergency and curfew in August 2013, combined with a security crackdown on protest activity by Brotherhood supporters. In December 2014, 40 perpetrators found responsible for attacks on churches in Upper Egypt received prison terms ranging from one to 15 years.
3.24The majority of incidences of communal violence in recent years have taken place in the provinces of Upper Egypt. The province of Minya – which has a sizeable (approximately 40 per cent) and relatively assertive Christian population, high concentration of Islamists, high rate of poverty, and low rate of education – has been particularly notable in this regard. According to the National Council of Human Rights, around ten incidents of communal violence occur each month in Minya. In one particularly high profile incident in May 2016, an elderly Christian woman was stripped and assaulted by a 300-strong mob angered by rumours that her son was in a relationship with a divorced Muslim woman. In July 2016, eight men involved in the incident were released and ordered to pay a fine.
3.25Egyptian leaders are sensitive to the impact of communal violence. President Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity, most recently in relation to the displacement of Christians from northern Sinai. In December 2018, the government announced it would form a higher committee tasked with developing a general strategy to prevent and confront communal incidents. While acknowledging Sisi’s personal engagement on the issue, Church officials have questioned the commitment of some local officials and law enforcement to upholding the law equally for Christians and Muslims.

3.26DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.
Christians
3.31 Christianity was established in Egypt in the first century and is one of the oldest centres of Christianity in the world. Although there are twelve officially recognised Christian denominations in Egypt (four Orthodox, seven Catholic and one Protestant), the vast majority of Christians in Egypt are members of the Coptic Orthodox Church. All those belonging to recognised Christian denominations are identified as Christian on their national ID cards. While Christians reside throughout the country, they are particularly concentrated in Upper Egypt (the southern part of Egypt) and in major cities such as Cairo and Alexandria. Suburbs in Cairo and other cities and some villages are sometimes regarded or described as ‘Christian areas’, but few are exclusively Christian (or Muslim). Egyptian Christians are politically and socio-economically diverse: they hold varied professions; range from the very poor to the very rich; and have attained a range of education levels.
3.32 Christians generally dress similarly to Muslim Egyptians. In urban areas, however, Christian women are more likely than Muslim women to leave their hair uncovered. Christian women living in rural or conservative areas are more likely to cover their hair, but generally do not wear the Islamic hijab. Christians tend to have identifiable names. Some Christians tattoo small crosses on the inside of their wrists or between their thumb and forefinger as a mark of their identity, often following visits to monasteries or holy sites. Not all Christians have these tattoos and it is not a mandatory religious practice.
3.33 There are no legal barriers to prevent Christians from being visible in public life, and a number of Christians have become prominent and influential in Egyptian politics and business. DFAT understands that the percentage of Christians in the Egyptian civil service is broadly representative of the religious breakdown of the population. However, Christians tend to be under-represented in senior civil servant roles, and in the upper ranks of the military and security services. It is very rare for Christians to be appointed as presidents, deans or vice-deans in public universities. While anti-discriminatory laws and legal protections exist, these are not always enforced fairly and Christians may experience some discrimination, particularly in rural areas.
3.34 Most Christians viewed the post-2011 Revolution ascendency of the Muslim Brotherhood with considerable apprehension. They regarded the Morsi government’s removal and the restoration of general law and order as a cause for relief, and strongly supported the ascendency of Sisi to the presidency. Many Christians and representatives of other minority faiths report that while things could always improve, they generally consider themselves better protected under President Sisi than previous Egyptian leaders. Christian religious authorities have consistently expressed appreciation for Sisi’s public messaging which has called upon Egyptians to place national unity above religious differences, and for his personal example: in 2015, Sisi became the first Egyptian head of state to attend Christmas mass at the St. Mark’s Cathedral in Cairo and has attended every year since. Sisi has actively engaged with the Christian community, declaring days of national mourning or calling personally on Pope Tawadros to express his condolences following terrorist attacks against Christians (see Security Situation). Local sources report that Christians generally remain strong supporters of Sisi, although (like other Egyptians) their initial enthusiasm has waned due to the lack of economic improvement and ongoing social difficulties in Egypt.
3.35 Minority Rights Group International estimates that there are between 1000 and 1500 Jehovah’s Witnesses living in Egypt. Although the denomination is not officially recognised, authorities permit its members to meet privately in gatherings of fewer than 30 people). Jehovah’s Witnesses are banned from importing religious literature such as Watchtower publications, which are a key part of religious instruction and practice for Witnesses.
3.36 DFAT assesses that Christians face a moderate risk of discrimination that is more likely to be societal than official in nature and is likely to vary considerably according to geographic location. Christians, particularly in rural areas, may face difficulty in obtaining justice through legal means (see Judiciary). Despite the lack of any official policy of discrimination, Christians remain less likely than Muslims to be able to achieve senior positions in institutions such as the civil service, military and security services, and universities

ANNEXURE B – 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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…