1106631 [2012] RRTA 38 (9 January 2012)

DECISION RECORD

RRT CASE NUMBER: 1106631

DIAC REFERENCE(S): CLF2011/53410

COUNTRY OF REFERENCE:

TRIBUNAL MEMBER: R Mathlin

DATE: 9 January 2012

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Egypt, first arrived in Australia on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] November 2008 and most recently arrived [in] June 2009. He applied to the Department of Immigration and Citizenship (the Department) for the visa [in] April 2011. The delegate decided to refuse to grant the visa [in] June 2011 and notified the applicant of the decision.

3. The applicant applied to the Tribunal [in] July 2011 for review of the delegate’s decision.

4. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.412 of the Act.

RELEVANT LAW

5. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.

6. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994.

Definition of ‘refugee’

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204

CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387 and Appellant S395/2002 v MIMA (2003) 216 CLR 473.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in

particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

18. The Tribunal has before it the Department’s file CLF2011/53410 relating to the applicant, and the Tribunal file and has had regard to the information on those files, and the other material referred to below, in considering this application.

19. A copy of pages from his passport was submitted with his protection visa application. It shows that the applicant entered Australia [in] June 2009 holding a student visa valid until [April] 2011.

20. According to information provided in his protection visa application, the applicant was born in [country deleted; s.431(2)] in [date deleted: s.431(2)] and is now in his [age deleted: s.431(2)]. His parents and a sister are in Egypt while his only brother lives in Saudi Arabia.

21. The applicant completed accounting qualifications in Egypt in 2001 and was subsequently employed in his professional field until November 2008. He provided one residential address for the period from 2001 until his departure in 2008.

22. In a statutory declaration submitted with his protection visa application the applicant stated that since March 2010 he has been a member of the Teghyeer party, led by Mohamad al Baradei. (This party is also known as the National Association for Change (NAC)). The applicant contributes regularly to the party’s website.

23. He stated that the Teghyeer party was instrumental in leading the protests which led to the ousting of the former Mubarak regime. The party is secular, opposed to political oppression and non-secularism. The Muslim Brotherhood (MB) is politically and ideologically opposed to the Teghyeer party, as are other radical groups such as the Salafists.

24. During the uprising the applicant’s brother and cousins were arrested and suffered gross human rights abuses while detained for three days. The applicant’s brother suffered a broken arm and leg. He fled to Saudi Arabia in March 2011.

25. Secularists are being increasingly targeted in the light of religious fervour which is sweeping the country and the likelihood that the MB will win a majority in the upcoming elections. Egyptian intelligence is cracking down on political dissidents and in particular members of Teghyeer. They visited his family’s home twice in the previous month questioning his parents extensively about the applicant’s activities overseas.

26. The applicant fears returning to Egypt because he will suffer detention, interrogation and physical abuse because of his political activities and association. He also fears that he will be targeted by Islamists.

27. When the Mubarak regime fell the applicant intended to return to Egypt and initiated the cancellation of his enrolment at college. However he feels that it is no longer safe for him to return to Egypt in the light of the current security crackdown and Islamic fervour.

28. With his application the applicant submitted a large number of photographs which appear to depict anti-Mubarak protests in Sydney.

29. The applicant was interviewed about his application by the delegate [in] June 2011. A CD Rom recording of the interview is on the Department’s file. The applicant provided the following information at interview.

30. He said that he joined the NAC or Teghyeer party in [2010] (via its website and Facebook) in Australia. After the Egyptian people toppled the Mubarak government, the MB and Salafists took advantage of the situation. In March 2011 his brother and cousin were arrested by the military council, instigated by the MB. They were tortured during a three day detention. The applicant said that they were subjected to this mistreatment because of him. Before this, Egyptian intelligence had visited the applicant’s house twice. He was one of the first people to organise protests overseas in support of the demonstrations in Egypt. Using his real name, he posted information on Facebook.

31. If he goes back he will be targeted. There is an alliance between the military council and the MB, and they are targeting secular opposition groups. People who are not well known or famous are arrested and tortured.

32. The applicant was asked about the other organisations that supported the NAC and he said that they were on their own; they started with no support from anyone. He then added that when the NAC was started, there were other parties that had the same goals; these included the Civil Society organisation, Egyptian Human Rights, and the Wafd Party. He was asked whether the MB supported the NAC. He said that before the revolution the MB supported the goals of the organisation, but later they wanted the NAC excluded from the picture.

33. He said that the goals of the NAC were to make life better for and to have good government. It was put to him that his answer was vague, and if he was involved to the extent that he claimed he should have been able to provide further information. The applicant said that before the revolution there were seven goals; after, they were to change the constitution, establish civilian government, and have parliamentary elections.

34. It was put to the applicant that there was no information to support his claims that members of the NAC either in Egypt or overseas had been arrested. He said that many opposition activists had been arrested and mistreated by the military council.

35. The delegate refused to grant the applicant a protection visa. While he accepted that the applicant had organised anti-Mubarak rallies in Sydney he found that there was no evidence to suggest that this would lead to his persecution by the new government. The delegate considered information that the MB and the NAC had, at some stages, been in alliance; and that the MB had established a political party and was actively engaged in the political debate. In these circumstances, he did not accept that the applicant was at risk of harm from the MB as a member of the NAC.

36. The applicant appeared before the Tribunal at a hearing held [in] October 2011 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent, who had previously assisted him to complete his protection visa application. His adviser attended the hearing.

37. The applicant presented a number of documents at the hearing, including a written statement containing further details of his claims to refugee status, correspondence with the police about a proposed demonstration in Sydney and screen prints of pages from his Facebook account. The applicant’s written statement included claims that: • At university he joined the student union for six months but was sacked because he was not “on the same line” as university management which was a “follower for the rotted government”;

• He then tried to express his political opinion through one of the parties, but they were all in the government’s hands so his only choice was blogging under a different name; he believes that the government hacked his accounts, discovered his identity and sent warnings about him to his workplace;

• In 2007 he joined the movement and in April 2008 he joined the 6 April movement;

• The statement set out the applicant’s political aspirations for Egypt as well as general information about the parties and organisations that he supports. It also contained information about SCAF and “Extremeist (sic) Muslim movements” in the post-Mubarak era;

• The applicant concluded with claims that he fears the current government, SCAF, which represents the old state security apparatus and which has visited his family home twice and questioned members of his family, trying to make them admit that the applicant had received donations from organisations abroad; thugs working on behalf of the old regime to create instability; and Muslim extremists who are taking advantage of the revolution to assassinate liberals or secular Muslims who do not share their views.

38. The applicant presented his Egyptian passport at the hearing. He confirmed that he was born in [country deleted; s.431(2)], where his father was a student. Both his parents are Egyptian citizens and he has no right to enter and reside in [the country of his birth].

39. The applicant stated that he first entered Australia in November 2008 holding a student visa. He stated that he finished his studies here, completing a diploma and an [advanced diploma]. The applicant stated that he had applied to enrol in a further course, but after the fall of the Mubarak government, he cancelled his enrolment application because he intended to return to Egypt. He provided correspondence between his agent and the college indicating that the applicant would withdraw his enrolment, although no reasons are stated in the correspondence.

40. The applicant stated that prior to coming to Australia he was a member of the 6 April movement. He said that his political activities were mostly on the internet (Flickr and Blogspot) and involved raising awareness. He said that he did not write under his own name. He said that the Egyptian authorities were trying to hinder his future at work but he did not pay much attention at the time because he intended to come to Australia. He stated that when he worked at [organisation deleted: s.431(2)], the security director was formerly a senior officer in [a government agency]. The applicant said that he learned through this man’s secretary that he obtained reports about employees and that he had argued that the applicant

should be fired. The applicant said that he felt that he did not receive promotions that he deserved, and also they tried to encourage him to leave by offering voluntary redundancy.

41. The applicant said that he had never had direct contact with the security director. He said that two months before he resigned he asked his line manager why he had not received a promotion that he had applied for. The line manager said that because of the company’s profile they had to be careful about not being associated with political activists.

42. The applicant said that he had no contact with national security authorities prior to his departure from Egypt. He said, however, that the company’s security director would have maintained his links with the national security agency and in fact, that is why he would have been hired.

43. I asked the applicant how anyone could have traced his online comments if he did not use his own name. He said that he has a friend who provides services to the Interior Ministry and who told the applicant that the ministry wants to have a file on every citizen; he said that they have their own ways to find out information. I asked, in that case, why write under a false name if it would not provide protection. He said that it was common among activists to use different names; also, at that time, he thought that using a false name would protect him.

44. I asked whether the applicant had ever attended any demonstrations in Egypt and he said that when he was a student he attended some protests against the wars in Gaza and Iraq in the early 2000’s.

45. I asked the applicant why he had not mentioned the political activities he claimed to have engaged in prior to his departure from Egypt before the hearing, either in his protection visa application or at interview with the Department. He said that when he applied he thought the important things were recent events. At the immigration interview he felt that the delegate had already made up his mind about the applicant’s case based on the country information that he had; he seemed to assume the applicant was lying and the applicant felt that there was no point in telling him anything.

46. The applicant said that when he arrived in Australia he continued with his political activities, blogging and using Facebook. He affiliated with the National Association for Change. After the fall of Mubarak he was about to buy a ticket home but when he spoke to his parents [in] March 2011 they told him that national security agents had been to their house and questioned them about when the applicant left for Australia, what he was doing there, and whether he was receiving funds from any groups. When his parents were unable to provide any information the agents detained the applicant’s brother and cousin who happened to be at the house. They were seriously tortured during a three day detention. The applicant believes that Egyptian security has special groups that monitor the internet. He said that they often respond to people who write unfavourable comments - about Mubarak previously, or now, the Military Council - with derogatory comments online. After he received this information, and because he had cancelled his enrolment, he had no choice but to apply for protection.

47. I asked the applicant how he knew what had happened to his brother. He said that he talked to his family almost every day on Skype. For a couple of days in early March his brother had not logged on; the applicant called home and his parents told him what had happened. He said that following his detention, his brother had left Egypt at the end of March. He obtained a pilgrim’s visa for entry to Saudi Arabia; these are issued in about three days. He went to Saudi Arabia, found a job, then left for Dubai to apply for a resident visa in Saudi Arabia.

The applicant agreed that I could telephone his brother, but I was unable to get through after several attempts.

48. I asked the applicant what he has written in Australia that he thinks would have brought him to the attention of the Military Council. He said that he wrote lots of articles about oppression and injustice under Mubarak; he did not use his own name. He organised some protests in Sydney; the police permits were issued in the applicant’s name and he posted information on the internet and sent emails about these protests. The applicant provided copies of correspondence with local police seeking a permit for a rally; he also showed me his phone and Facebook account which contained messages about demonstrations in February 2011. The applicant said that he had tried to give this material to the delegate at the interview, but the delegate had refused to accept it.

49. I asked the applicant whether anything has happened since March 2011 to indicate that he is of ongoing interest to the Egyptian authorities. He said that when his father goes to the mosque to pray extremists talk to him about the applicant. He said that national security had returned to his home in April. He said that he had mentioned this second visit at the immigration interview. I asked whether the fact that there had been no apparent interest in him since April might indicate that the current government of Egypt might has no interest in him. He said that they had just accepted that his parents know nothing about his activities, but he said that they will know when he returns.

50. I put to the applicant that I was aware of no information indicating that people like him were currently having problems in Egypt. He said that there is a lot of information. He said that twelve thousand civilians who were detained during and after the revolution are being prosecuted before military courts; many journalists who have opposed the Military Council are also detained. He said that Asma Mahfouz, the media coordinator of the 6 April Movement was charged, but acquitted because of her high profile; however, not everyone has that sort of influence.

51. I put to the applicant that I was aware of reports that people arrested before and during the demonstrations that led to the fall of Mubarak had been arrested and charged; that one blogger had been imprisoned; and that demonstrators attending at least two protests had been arrested, and in the case of a recent one involving Copts, killed. However, there was no information to suggest that a person such as the applicant would be at any risk of harm.

52. I asked the applicant whether he had copies of any information he had posted on the internet. He had some pages from October 2011, including one that he said showed an article that he had written on [a particular date in] October 2011. The article, in Arabic, was [details deleted: s.431(2)]. A second article referred to Gaddafi and Bashar al Assad, and events in Libya and Syria.

53. I explained to the applicant that pursuant to s.91R(3) of the Act , in relation to conduct engaged in in Australia, I had to be satisfied that it was not engaged in for the purpose of strengthening his claims to refugee status; if I was not so satisfied, I was required to disregard such conduct in assessing his application, even if I thought that the conduct might cause trouble for him. I explained that this meant that I had to consider whether conduct he had undertaken in Australia was done as a genuine expression of his political opinion, or to strengthen his application. The applicant said that he had been writing and doing this stuff since 2007; he never thought about the consequences. The most recent stuff he has written might support his application but he had never thought about that. The most recent writing

(the material from October that he had given me) was produced coincidentally, because of the recent events in Egypt (the deaths of thirty people at a demonstration).

54. I put to the applicant that the demonstrations he had organised in Sydney had taken place before the fall of the Mubarak government; I asked why this activity would cause problems for him under the current government. The applicant said that even though Mubarak is no longer in power, things in Egypt are the same or even worse. He mentioned the re-enactment of Emergency Laws following demonstrations outside the Israeli Embassy in . I asked the applicant why anyone currently in power would care that he had been opposed to Mubarak. He replied that the recent killings by the army of protesting Copts showed that nothing had changed – Copts were persecuted under Mubarak and continue to be persecuted under the Military Council. This shows that the mentality of the regime has not changed. As a Muslim Egyptian he does not like what is happening.

55. I explained to the applicant that the question for me is whether he has a well founded fear of persecution; the fact that other groups may be being persecuted in Egypt, or that he does not like what is happening in Egypt does not mean that he faces persecution. The applicant responded that he has fear; previously his fear was of the NSIS (National Security). Now, anyone walking in the street could be an agent of the former government, or an extremist; they can kill anybody and no one cares. I put to the applicant that there was no information to suggest that this was happening; given the media scrutiny of events in Egypt and the level of activism, I would expect that if political activists were being killed in this way, this would be reported.

56. The applicant said that he has a well founded fear of persecution by the Military Council, SCAF, and, even more dangerous, from extremist movements or gangs of the former regime, who might just kill him in the street because they perceive him as secular or an infidel. I asked whether he believes that extremists would target him on return because of what he would do, or the way he looks. He said that Salafists in particular believe that men should have beards; they are trying to implement sharia law. For example, they cut off the hands of a man who stole something and cut the ear off a man who was with his girlfriend. According to their view, anyone who does not agree can be punished. The applicant does not agree with them because he wants a secular government. I put to the applicant that there are many secular, moderate Muslims in Egypt and there are only very few reported incidents of Salafists or extremists committing harm against anyone; this indicated that merely being a secular moderate Muslim did not establish a well founded fear of persecution. The applicant said that Muslims and Salafists had called for amendments to the old constitution in opposition to the secular opposition who called for a new constitution. They think the majority of the population is with them. He said that the country information only reports what has happened; one week ago, no one would have predicted the killing of thirty Copts by the military. If he goes back, he will continue with his activities. He is not saying they will get him as soon as he arrives at the airport, but sooner or later they will. I put to the applicant that there must be many people involved in similar activities to his, both overseas and in Egypt and there is no information to suggest that they are being detained or arrested in any significant numbers. The applicant said that people criticise Mohamad al Baradei in spite of his prominence; they slander him and suggest that he is not a real Muslim.

57. I invited the applicant to submit copies of any additional material from internet websites that he wished the Tribunal to consider. [In] October 2011 the Tribunal received a bundle of documents, which unfortunately, were not described or annotated in the covering letter. Some of the articles appear to be commentaries and reports by others, including human rights

organisations, about protests and demonstrations in Egypt and the response of the SCAF to those. Some concerned demonstrations outside the Israeli Embassy in May 2011, and demonstrations in June 2011 about the mistreatment of protestors during the January demonstrations. These reports included “At least 10 arrested as protesters leave Tahrir amid threats to stage sit-in next Friday”, dated 1 October 2011, http://english.ahram.org.eg/News/23039.aspx , which referred to a demonstration held by two thousand protesters to “reclaim the revolution” The main political forces behind the demonstration were 6 April Movement, Egypt Freedom Party and El Adl Party, and the crowds were addressed by a political commentator Amr Hamzawi and presidential candidate Mohamed Selim El Awwa.

58. The applicant provided an extract from the Wikipaedia entry on “Human Rights in Egypt under the Supreme Council of the Armed Forces ” The article refers to the arrests, detention and torture of a number of demonstrators by the Egyptian army in early March 2011. The article also refers to the arrests and detentions of a number of political activists including two on 15 May 2011 who were reportedly well known for their Twitter activity during the revolution and who were reported to have been freed after military trials; and another who had actively tweeted from Tahrir Square during June 2011 protests. The article also noted the case of Maikel Nabil Sanand, a blogger, conscientious objector and anti-conscription activist who was charged with insulting the military in his and sentenced to three years imprisonment.

59. One of the reports provided was about the detentions of bloggers in the years prior to the January 2011 revolution: Egypt arrests another blog critic , BBC News online, 20 November 2006.

60. Also submitted were screen prints of a number of pages from the applicant’s Facebook showing posts that mainly contained anti-Mubarak comments. There were also entries and photographs showing the applicant’s involvement with an anti-Mubarak demonstration in Sydney held [in] February 2011.

61. [In] December 2011, at the request of the Tribunal, the applicant’s adviser submitted a copy of the applicant’s brother’s passport which indicated that he departed Egypt [in] March 2011. There is evidence of a visa for entry to Saudi Arabia valid for 90 days, as well as entries to the UAE and Dubai.

Country information

62. According to the Freedom House report, Freedom on the Net 2011, in an addendum covering the events in Egypt of early 2011, which occurred after the preparation of the main report: On January 25, Egyptians took to the streets as part of widespread protests against President , demanding that he step down. Social media tools such as Facebook and Twitter played a strategic role in mobilizing citizens and disseminating news. The authorities soon responded with intermittent blocks on access to such tools and to the websites of prominent independent newspapers. Then, in an extreme measure, from January 27 to February 2, the government, cut off all internet access and mobile-phone services in the country. A large number of bloggers and online activists were also detained during the protests, including Google executive , who disappeared on January 28, and was released from government detention on February 7.

On February 11, Mubarak stepped down, and the government ceded power to the Egyptian Army, while all detained journalists were freed. However, tensions between citizens and the army have since surfaced. On March 28, military police arrested blogger Maikel Nabil Sanad for criticizing the lack of transparency in the armed forces. On April 11, he was sentenced to three years in prison.

63. The report notes an “increase in internet-based activism among Egyptians in the last few years, which has given rise to political opposition movements such as the and the National Coalition for Change. The authorities’ desire to suppress web- based and traditional media became even more evident in advance of the November 2010 parliamentary elections”.

64. The report states: The government’s sporadic efforts to remove websites that run against its interests and limit the spread of information through new technologies became first apparent in the run up to the November 2010 election. In the past, the authorities typically focused on intimidating users rather than actually removing content and blocking websites…

Nonetheless, as political temperatures started to rise in the fall of 2010, several individuals who called for political change and democratic reform saw their websites affected. In one example, the blog belonging to Amr Osama—which promoted an opposition presidential candidate—was closed by its Emirati hosting service in September 2010. Those who later attempted to visit the site were greeted with a message by the hosting service stating that the blog was removed due to a complaint by , the president’s son.

Also, in November, two Facebook groups, both popular platforms for organizing protests and with more than 200,000 members, were temporarily removed. One of the two groups “We Are All Khaled Said” emerged as the leading voice against police violence and corruption; the other group was in support of Mohammed ElBaradei, a former Director General of the International Atomic Energy Agency and a presidential hopeful favored by the opposition. Many suspect that the removals were carried out at the request of the Egyptian government, although Facebook claimed that the groups were removed because their administrators used pseudonymous accounts, which is in violation of the company’s terms of use.

The government maintains long-standing but unwritten “red lines” regarding certain sensitive issues, such as the president and his health; the military; Muslim-Christian tensions; Islam as a religion; and torture. Media personnel know that such topics should be handled with particular care, if at all. However, online activists and bloggers have become increasingly outspoken and routinely disregard most of these taboos. Internet users can freely access local and international political websites as well as the sites of human rights organizations, including some that harshly criticize the government and the political system.

…

It is difficult to gauge the extent to which Egyptian security services monitor internet and mobile-phone communications, although a history of distrust between citizens and security forces has led to the widespread assumption that such monitoring could be in place at any time. All internet and mobile-phone users are required to register their personal information with the ISP or mobile operator. Those who buy a USB modem have to fill out a registration form and submit a copy of their national

identification card. The same regulations apply for home internet subscribers. The government asks most internet cafes owners to record the names and identification numbers of their customers. ..

Social networking sites make it much easier for internet activists to organize, but they also allow government agents to monitor such activity and identify participants. The government regularly applies offline punishments or intimidation to online activists.

This includes “friendly” warnings in phone calls from military or security officers, beating or detaining activists during street demonstrations, and court cases that may lead to prison sentences. In addition, security services use legal and extralegal means to collect users’ internet and mobile-phone records from ISPs, internet cafes, and phone companies in the course of their investigations. These abuses have resulted in Egypt’s inclusion on the Reporters Without Borders list of “internet enemies” since 2006, and as one of the 10 worst countries to be a blogger according to the Committee to Protect Journalists in 2009.

Security services have used detentions and harassment, and in some cases torture, to intimidate online writers, and a growing number of bloggers have spent time in jail. In February 2007, Abd al-Karim Nabil Suleiman (widely known by his blogging name, Karim Amer), then a 22-year-old student of religious law at Al-Azhar University, became Egypt’s first blogger to be sentenced to prison for his online writings. A court in handed Suleiman a four-year prison term on charges of “inciting hatred of Islam” and “insulting the president.”

Those who have been detained for shorter periods include Esraa Abdel Fattah, the creator of the Facebook group calling for the general strike on April 6, 2008. She was detained for two weeks that month on charges of “inciting unrest,” but the charges were dropped by the prosecutor. He was released in November 2010.

Also in 2008, Hany Nazeer was detained for a blog post that included a link to a book seen as insulting to Islam. He was kept in detention under the Emergency Law for 21 months before finally being released in July 2010. In February 2010, blogger Ahmed Mostafa was detained and slated for trial before a military court, despite being a civilian, after he wrote about alleged abuses by the Egyptian army. The military abruptly dropped the case in March, however. A Cairo appeals court in February reversed a lower court’s November 2009 decision to sentence blogger to six months in prison and a fine for allegedly damaging an internet cable, but in March an economic court gave him an identical sentence for providing telecommunications service without authorization.

Internet activists have rallied around the case of Khaled Said, a 28-year-old who was allegedly beaten to death in June 2010 by two plainclothes policemen who dragged him from an internet cafe. The officers—now on trial for illegal arrest, torture, and excessive force, but not for murder—claimed that he choked to death while trying to swallow illegal drugs. He had reportedly posted a video on the internet showing policemen sharing the spoils of a drug bust, raising suspicions that he had been targeted for that reason.

In one of the most recent examples of government’s misuse of power, Youssef Shabaan, a journalist for the online news outlet Al-Badil, was arrested in November 2010 while covering street protests in Alexandria and charged with drug possession. According to various independent groups, the charges against Shabaan were made up to punish him for his critical coverage of police brutality during the protests.

65. Freedom House also reported (Freedom House 2011, Growing Challenges to Internet Freedom , 22 September http://freedomhouse.org/template.cfm?page=700 ) that several companies had supplied sophisticated surveillance technology to Egypt during the Mubarak era: Boeing subsidiary Narus sold technology to state-run Telecom Egypt to intercept and inspect internet and mobile phone communications. Britain’s Gamma International provided its product Finspy to Egypt’s security service, which used the product to monitor dissidents’ online activities. This spyware infects the computers of dissidents and allows the security service to capture key strokes and intercept audio streams, even when the dissidents are using encrypted email or voice communications such as skype.

66. In a report on political developments post-Mubarak released in November 2011 ( Broken promises- Egypt’s military rulers erode human rights , http://www.amnesty.org/en/library/asset/MDE12/053/2011/en/47be269e-b67a-42f4-835b- 787f91044e04/mde120532011en.pdf ), claimed that: In order to stem criticism, the SCAF has been quick to blame “foreign conspiracies” and have used the foreign funding of NGOs as a scapegoat. An atmosphere of suspicion and xenophobia was stirred up by the authorities both under Hosni Mubarak and during the uprising, often targeting independent civil society and media. …

On 6 July, the Minister of Solidarity and Social Justice stated that the USA had violated Egyptian sovereignty by funding civil society without the authorities’ permission. The Minister warned NGOs against accepting foreign funding and announced that a committee had been formed to review foreign funding of civil society. On 12 July, the Minister of Planning and International Co-operation, Fayza Mohamed Aboulnaga, instructed the Ministry of Justice to investigate foreign funding of civil society in Egypt.

The Egyptian authorities have repeatedly protested US funding of Egyptian non- governmental organizations. In late July, SCAF member and assistant defence minister, Mohammed Said al-Assar, criticised the US authorities in person, and in late October Minister of Planning and International Co-operation formally protested US funding of international organizations operating in Egypt. The announcements were widely seen as harbingers of a new campaign against independent civil society. In a meeting on 27 July, the Ministerial Cabinet stated its “complete [rejection of] foreign interference in the internal issues including foreign direct finance by all means and from all sources presented to NGOs or other entities which violates law.” On 14 September, the Cabinet decreed that the fact-finding committee’s report “on the foreign finance for NGOs and various authorities” would be referred to the “investigation authorities in this concern, to be announced legally [sic].”

67. On 29 December 2011 The New York Times reported that security forces had conducted raids on a number of overseas financed NGOs operating in Cairo: Security forces shut down three American-financed democracy-building groups and as many as six other nonprofit organizations on Thursday, in a crackdown that signaled a new low in relations between Washington and Egypt ’s military rulers.

…

The raids are the latest and most forceful effort yet by the country’s ruling generals to crack down on perceived sources of criticism amid rising calls from Egyptian

politicians and protesters and some Western leaders for the military to hand over power to a civilian government. Those calls were punctuated by Secretary of State Hillary Rodham Clinton’s expression of outrage last week over the military’s beating and stripping of female demonstrators in Tahrir Square.

…

The state news media said that the raids were part of an investigation into what it described as illegal foreign financing.

…

But Egypt’s military rulers began railing against the dangers of foreign financing to Egyptian sovereignty around the time last spring that the United States said it would allocate $65 million to help foster electoral democracy here. Although the United States is Egypt’s most important benefactor, its policies in the region are also very unpopular here, making it an easy target.

…

As new clashes have broken out between the military police and protesters challenging military rule — more than 80 have died since October — the generals have often warned that there are “hidden hands” trying to stir up trouble or “bring down the state.” They have increasingly suggested that those hidden hands could be foreign-financed.

In a television interview last month, Maj. Gen. Mamdouh Shaheen suggested several times that the investigation into foreign financing of nongovernment organizations would shed light on the unnamed instigators who he said were behind the protests and clashes in the streets.

“There are hidden hands playing in the country,” he said. “We tell the Egyptian people, and the Egyptian people are smart, that there are people who are trying to demolish the country.”

…

See: “Egypt Raids Offices of Nonprofits, 3 Backed by U.S”, David D Kirkpatrick and S teven Lee Meyers, http://www.nytimes.com/2011/12/30/world/middleeast/egypts-forces-raid- offices-of-us-and-other-civil-groups.html?pagewanted=print

68. The Guardian Weekly of 30 December 2011 subsequently reproduced a Washington Post report stating that residents of Cairo were starting to turn away from the protestors, believing the military’s assertions that the protestors were products of a foreign plot designed to destabilise Egypt: Leila Fadel and Ingy Hassieb, Washington Post , in The Guardian Weekly , 30 December 2011.

69. In a news release dated 21 November 2011 summarising the Broken Promises report (http://www.amnesty.org/zh-hant/node/28206), Amnesty states that: Egypt's military rulers have completely failed to live up to their promises to Egyptians to improve human rights and have instead been responsible for a catalogue of abuses which in some cases exceeds the record of Hosni Mubarak, Amnesty International said today in a new report. …

The report's release follows a bloody few days in Egypt that has left many dead and hundreds injured after army and security forces violently attempted to disperse anti- SCAF protesters from Cairo’s Tahrir square.

"By using military courts to try thousands of civilians, cracking down on peaceful protest and expanding the remit of Mubarak's Emergency Law, the SCAF has continued the tradition of repressive rule which the January 25 demonstrators fought so hard to get rid of," said Philip Luther, Amnesty International’s Middle East and North Africa Acting Director.

"Those who have challenged or criticized the military council - like demonstrators. journalists, bloggers, striking workers - have been ruthlessly suppressed, in an attempt at silencing their voices.

"The human rights balance sheet for SCAF shows that after nine months in charge of Egypt, the aims and aspirations of the January 25 revolution have been crushed. The brutal and heavy-handed response to protests in the last few days bears all the hallmarks of the Mubarak era."

Amnesty International found in its review of human rights under the SCAF that the military council had met few of the commitments it made in its many public statements and had worsened the situation in some areas.

By August, the SCAF admitted that some 12,000 civilians across the country had been tried by military courts following grossly unfair trials. At least 13 have been sentenced to death.

Charges against defendants have included “thuggery”, “breaking the curfew”, “damaging property” and “insulting the army”.

The case of prisoner of conscience Maikel Nabil Sanad, a blogger sentenced to three years in prison in April for criticizing the military and objecting to military service, has become symbolic. After going on hunger strike in August, prison authorities have denied him the medication he needs to treat a heart condition. He continues to be held in prison as his case is being reviewed by another court following an appeal in October.

In a clear attempt to suppress negative media reporting about the SCAF, scores of journalists and broadcasters have been summoned to the military prosecutor. Pressure from the military has led to a number of major current affairs shows being cancelled.

The SCAF promised in early statements to “carry out their leading role in protecting protesters regardless of their views” but security forces, including the army, have violently suppressed several protests, resulting in deaths and injuries.

Twenty-eight people are believed to have been killed on 9 October after security forces dispersed a protest by Coptic Christians. Medics told Amnesty International that casualties included bullet wounds and crushed body parts, after people were run over by speeding armoured vehicles. Instead of ordering an independent investigation, the army announced that it would carry out the investigation itself and moved quickly to suppress criticism.

Prominent blogger Alaa Abd El Fatta, who witnessed the violence and criticized the fact that the army was leading on the investigation into the crackdown, continues to

be detained following his questioning by military prosecutors on 30 October, in what seems to be an attempt by the SCAF to stem criticism of their bloody handling of the Maspero protests.

Amnesty International said it had seen consistent reports that the security forces were employing armed “baltagiya” or “thugs” – to attack protesters. This was a well- known tactic employed under the rule of Hosni Mubarak.

Torture in detention has continued under the SCAF and Amnesty International has interviewed detainees who said they were tortured in army custody. In September a video circulated showing army and police officers beating and giving shocks to two detainees. After apparently carrying out an investigation, the military prosecution dismissed the video as “fake”, without giving any further details.

Amnesty International said that the SCAF has used promises of investigations to deflect criticism of serious human rights violations, but has failed to deliver. No perpetrators of such abuses are known to have been brought to justice.

70. Apart from the abduction, reportedly by thugs, of a Mohamed el Baradei supporter in Alexandria in September 2011, the Tribunal has been unable to locate information indicating that members of the NAC have been targeted since Mubarak’s resignation. There are reports of arrests of demonstrators at a number of demonstrations held post-Mubarak, however, the circumstances of these arrests are unclear – it is not known if certain activists are specifically targeted, or whether those arrested are engaged in particularly violent forms of protest.

71. There are also reports of the arrests of a number of bloggers – Maikel Nabil Sanad, who was arrested on 28 March 2011, tried in a military court in April and sentenced to three years in gaol for Facebook and blog comments in which he criticised the military’s use of force against peaceful protesters in Tahrir Square and described how he was detained and tortured by the military in February. Sanad was a member of a campaign against conscription. His writings are posted on the website http://writingrights.org/2011/04/12/egyptian-blogger- jailed-for-three-years-resist-military-rule-send-your-protest-to-their-embassy/ They consist of a very detailed, largely first hand account of events in Tahrir Square with detailed accounts and criticisms of the actions of the security authorities.

72. There is no information available to the Tribunal, and nothing in the information provided by the applicant, to indicate that militant Islamists, including the MB and Salafists, acting alone or in concert with the military authorities, are routinely targeting members of secular, democratic groups for harm.

FINDINGS AND REASONS

73. The applicant claims to be a national of Egypt. Having seen his Egyptian passport and in the absence of any evidence to suggest otherwise, I accept that the applicant is a national of Egypt. There is no evidence before me to suggest that he has the right to enter and reside in any other country. Accordingly, his claims to refugee status will be assessed against Egypt, as his country of nationality.

74. The applicant claims that if he returns to Egypt he will be persecuted for reason of his political opinion. He claims that while in Australia he has published material on the internet that has led to adverse interest in him by the Egyptian security authorities. He claims that in January and February 2011 he organised and attended demonstrations in Sydney that were

held in support of the anti-Mubarak demonstrations in Egypt, and that information about these events was posted on the internet. He also claims that he has written – under another name - articles and other material critical of events post revolution. He claims that in early March 2011 security authorities came to his home in Cairo asking about him. He claims that, in his absence they detained his brother and cousin who were tortured for three days before being released. The applicant claims that if he returns to Egypt he could be harmed by either the security authorities, or by pro-Mubarak thugs, or by Muslim extremists who have taken over the revolution and who are opposed to secular, moderate Muslims such as the applicant. At the hearing the applicant raised new claims that prior to his departure from Egypt he was involved in opposition parties (Kafiya and 6 April movement) and that he posted political comments on the internet under a false name. He claims that despite this, he was identified by security agencies and that he experienced some problems in his workplace as a consequence.

75. I do not accept that the applicant acquired a significant political profile prior to his departure from Egypt as a consequence of having posted material on the internet. His evidence was that he only posted material under a false name and in these circumstances I do not accept that he would have been identified by the security authorities. I do not accept that the claimed hindrances that the applicant experienced at work were on account of his having acquired a profile as a political activist because of his activities on the internet. His evidence that he was denied promotions because of his political activities was vague and based on speculation and information that he claims to have heard second hand. I do not accept that, as he claimed, the secretary of the security director told him that the security director had been arguing for his sacking. I do not accept that any problems the applicant had at work were because he was known to have posted material on the internet. I do not accept that, if the applicant was really regarded as a political activist of concern because of comments made on the internet, no formal approach would have been made to him either by his employer or the security authorities. I also note that the applicant’s other claimed political activities in Egypt were minimal, and limited to attendance at some demonstrations in around 2000. In these circumstances I do not consider that prior to his departure from Egypt the applicant was regarded by the security authorities as a person of any interest because of his political views or activities as expressed anonymously on the internet or in any other way.

76. As to his activities in Australia, I accept that the applicant organised demonstrations held in Sydney [in] February 2011; while he claims to have been involved in others, he has only presented evidence of his involvement in these two. The material submitted by the applicant, consisting of screenprints and other material which appeared under his name on the Internet, including his Facebook and Twitter accounts, his mobile phone records which I viewed at the hearing, and a reference on the [Organisation A] website to [a] February 2011 demonstration which includes the applicant’s name as a contact person, show that the demonstrations were clearly expressed to have been against the Mubarak government, and in support of the demonstrations then taking place in Egypt. I also accept that in October 2011 the applicant posted on his Facebook page a satirical comment on the military government, suggesting that it [details deleted: s.431(2)]. It is possible that the applicant has posted other material anonymously; or even under his own name, but there is no directly corroborative evidence that this is the case.

77. Although I consider that the applicant has exaggerated his political profile to some extent, particularly in relation to the activities he claims to have undertaken in Egypt before coming to Australia, I accept that he has genuinely held political views; that these initially comprised opposition to the Mubarak government; and that they now include opposition to the military

government, SCAF, which he believes, as do many others, has “hijacked” the revolution which deposed Mubarak. I accept that the applicant has undertaken political activities in Australia and I am satisfied that this was done as a genuine expression of his political views and therefore for purposes other than to strengthen his claims to refugee status. I am therefore not required to disregard this behaviour pursuant to s.91R(3) of the Act.

78. The applicant was questioned extensively at the Tribunal hearing and was able to give a reasonably detailed and credible analysis of political events and movements and of his own views and activities. While in my view there were some minor credibility concerns with the applicant’s account, these are not of such gravity or significance as to totally undermine all his evidence. In particular, while there were some inconsistencies between the claims made in his protection visa application and at the hearing, and some of his claims appear to have slightly shifted over time, I consider that this is equally consistent with the applicant, an obviously intelligent young man with a degree of genuine political awareness, becoming increasingly aware of the significance of certain events and the need to provide information about them. Having listened to the recording of the Department’s interview with him it is also true, as he claimed at the hearing, that the delegate’s questioning of the applicant was fairly limited, so it would not be fair to draw an adverse inference from his failure to reveal further information at that time.

79. For the following reasons I consider that, as a result of his political activities in Australia, there is a small but real chance that the applicant would face serious harm amounting to persecution for reason of his political opinion or a political opinion imputed to him, should he return to Egypt.

80. I accept that the applicant was involved in organising two demonstrations in Sydney against the Mubarak regime. An internet search of the applicant’s name reveals, on the website of [Organisation A], information about a demonstration held on [a particular date in] February 2011, with the applicant named as a contact person. I consider it possible that the Egyptian authorities are aware of the applicant’s role in these demonstrations. The applicant claimed at the hearing that when the security authorities approached his parents in March 2011, shortly after these demonstrations, they asked about the applicant’s activities overseas, what groups he was involved with and who was funding his activities. This kind of questioning would appear to reflect the authorities’ concern with overseas involvement in domestic political opposition, as reported in Amnesty’s Broken Promises report, and in recent media reports of raids on NGOs suspected of (or actually) receiving funds from foreign (principally American) organisations: see, for example, The New York Times and Guardian Weekly reports cited above. I accept that the applicant’s parents were questioned in March 2011, as he claims. While I consider it more likely that the applicant’s brother and cousin were detained and tortured because of their own involvement in protests in Egypt rather than the applicant’s activities, I cannot dismiss the possibility that they were mistreated in this way because of their connection with the applicant. The other factor which, in my view, provides support for the applicant’s account of the questioning of his parents and the mistreatment of his brother and cousin is the timing of his protection visa application. I accept his evidence, which is at least partially supported by correspondence between the applicant and his education agent and course provider, that he intended to return to Egypt in early 2011 and cancelled his course enrolment; but that the events of March 2011 when his family members were questioned about him led him to believe that he would be in danger on return and he was then left with no option but to apply for protection. I note also that the evidence in the applicant’s brother’s passport of his movements supports to some extent (and certainly does not

contradict) the applicant’s account of his having left Egypt at the time claimed by the applicant.

81. The available country information about ongoing serious human rights abuses and the suppression of political opposition under the SCAF government indicates that opposition to the current regime is not tolerated. While the applicant has provided little evidence of ongoing activity directed against the SCAF government, I accept that he has posted at least one anti- military article on his Facebook page, in October 2011. In these circumstances, I consider that there is a small but real chance that the applicant’s demonstrated and publicly documented opposition to Mubarak, and his support for the 25 January revolution which caused Mubarak to resign, would cause him to be imputed as the holder of political opinions adverse to the current, post-Mubarak government. It is evident from the many media and human rights reports about the current political protests in Egypt that the groups that were instrumental in the 25 January revolution are also responsible for protests against its apparent hijacking by the subsequent military government. I consider that there is a real chance that the applicant would, because of his public anti-Mubarak stand, be imputed to also hold opinions adverse to the current government. If it is accepted that the applicant had previously come to the attention of the authorities because of his involvement in the Sydney protests, it follows, in my view, that there is a real chance that his ongoing internet posting would be monitored and that the current authorities would be aware of the article in which he satirised the military’s role in the revolution The country information reveals that bloggers and internet activists are targeted by the Egyptian authorities. While most of those arrested appear to have a significantly higher prolife than the applicant, and their posts often contain first hand accounts of human rights abuses carried out in Egypt by the security authorities and are thus qualitatively and quantitatively different from those of the applicant, I consider that because of his public linkage with [Organisation A] and his activities having been conducted outside Egypt, and in view of the evidence about the authorities’ concern with foreign funding by and involvement of foreign organisations with Egyptian domestic politics, there is a real chance that the applicant would be viewed as of greater concern than he might otherwise be, given the relatively insignificant nature of his postings.

82. There is a great deal of evidence which indicates that the Egyptian security authorities routinely engage in serious human rights violations of those perceived as political opponents. According to Amnesty International’s November report, torture of detainees in military prisons and detention centres, and in police stations, continues to be widespread, and torture and ill treatment are committed with impunity. Since the revolution, scores of Egyptians have been summonsed to appear before military prosecutors following public criticisms of the armed forces online. While some have been released after questioning, others have been charged, detained and sent to trial before military courts. According to Amnesty International, trials before such courts are fundamentally unfair. In all the circumstances, while I consider that the possibility of the applicant coming to serious harm on return to Egypt is small, given the minor nature of his activities and what would appear to be a relatively low online profile, I cannot be satisfied that the risk that he would face persecution is remote or insubstantial and therefore not well founded. I am satisfied that there is at least a real chance that the applicant would be questioned on return; that such questioning may involve a period of detention, namely a threat to the applicant’s liberty; and that such detention may be accompanied by other forms of serious harm including significant physical harassment or ill treatment. Such serious harm would involve systematic and discriminatory conduct and would be directed against the applicant as a result of the peaceful expression of his political opinion. It therefore constitutes Convention persecution.

83. In these circumstances, I am satisfied that there is a real chance that the applicant faces persecution for reason of his political opinion should he return to Egypt. I am satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) for a protection visa.

DECISION

84. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention.