Citation: 2020 RLLR 188
Tribunal: Refugee Protection Division
Date of Decision: March 31, 2020
Panel: Megan Kammerer
Counsel for the Claimant(s): Thaer Abuelhaija
Country: Egypt
RPD Number: VB9-06075
Associated RPD Number(s): VB9-06090, VB9-06091, VB9-06092, VB9-09949
ATIP Number: A-2020-00518
ATIP Pages: 003875-003886
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX (the “principal claimant”), XXXX XXXX XXXX XXXX XXXX XXXX (the “associate claimant”), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX (the “minor claimants). The claimants are a family from Egypt who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).1
[2] I heard these claims jointly pursuant to Rule 55 of the Refugee Protection Division Rules. At the hearing the principal claimant who is the mother of the minor claimants acted as the designated representative for them, pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. She was provided with an opportunity to testify about any risk that the minor claimants face. The associate claimant, who is the spouse of the principal claimant and the father of the minor claimants, was also provided with the opportunity to testify about the events in question.
[3] In hearing and assessing these claims, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution2, which offers guidance in recognizing women as members of a particular social group and also with respect to other gender specific issues present in this claim.
ALLEGATIONS
[4] The claimants fear that their daughter, the minor claimant XXXX XXXX XXXX XXXX XXXX XXXX, will be forced to undergo female genital mutilation (FGM) if she returns to Egypt. The claimants allege that the associate claimant’s brother has forcibly tried to abduct the minor claimant to undergo FGM. They are worried for the safety of their children if they return and as well are worried that their brother will take action against them because they have intervened and undermined his power.
[5] The claimants believe that they will be killed and/or arrested if they return to Egypt.
DETERMINATION
[6] I find that the principal, associate, and minor claimants XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX have a wellfounded fear of persecution on the basis of membership in a particular social group and are therefore Convention refugees under section 96 of the Act.
[7] I find that the minor claimant XXXX XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act, nor a person in need of protection pursuant to subsection 97(1).
ANALYSIS
Identity
[8] I find that the identities of the claimants as nationals of Egypt have been established by their testimony and the supporting documentation filed, including their passports.3
[9] I find that the identity of the minor claimant XXXX XXXX XXXX XXXX as a national of the United States of America has been established by the testimony of the principal claimant and the supporting documentation filed, including her passport.4
Credibility
[10] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimants’ truthfulness. Both the principal and associate claimants testified in a straightforward and convincing manner, answered all of the questions that were posed to them in a detailed way, and were able to speak about the threats that they faced due to their opposition to FGM.
[11] In addition, the claimants have disclosed the following documents which corroborate their allegations:
- A police report filed on XXXX XXXX XXXX 2019 by the principal claimant which indicates that her brother-in-law threatened to take her daughter by force at her school, so that he could perform a circumcision operation.
- A letter of support written by the principal claimant’s neighbour which indicates that on XXXX XXXX XXXX 2019 the principal claimant was crying and screaming because she was afraid of her brother-in-law. The letter indicates that the principal claimant’s brother-in-law threatened her, indicating that she needed to withdraw her complaint or the police officer accompanying him would arrest her. The neighbour further indicates that the police officer showed the neighbours his identity card and indicated that this was a family matter and none of them needed to interfere.
- A letter of support written by the principal claimant’s friend which indicates that the principal claimant asked to live with her on a temporary basis because she was afraid of her brother-in-law. The letter confirms that an individual began threatening the principal claimant at her home and told the principal claimant to give her daughter to her brother in law.
- A letter of support written by an individual who called the principal claimant to advise her that her brother in law was trying to take her daughter from school on XXXX XXXX XXXX 2019.5
[12] I find that the claimants are credible witnesses and I believe what they have alleged in support of their claims.
Countries of Reference – the Minor Claimant XXXX XXXX XXXX XXXX
In order for a claim for refugee protection to be successful, the Act requires that a claimant establish a claim against each of their countries of nationality. In this case, the minor claimant XXXX XXXX XXXX XXXX was born in the United States and has American citizenship. During the hearing, the claimants conceded that they would not be pursuing a claim against the United States. Accordingly, I conclude that the minor claimant is neither a Convention refugee nor person in need of protection. As such, the remainder of my reasons relate only to the principal claimant, associate claimant and the minor claimants XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXWell-Founded Fear of Persecution and Risk of Harm
Nexus
[13] The principal claimant alleges that she and her daughter, the minor claimant XXXX XXXX XXXX XXXX XXXX XXXX, are at risk due to threats a relative has made with respect to forced FGM. I find that the persecution the principal claimant and minor claimant XXXX XXXX XXXX XXXX XXXX XXXX fears has a nexus to the Convention ground of a particular social group, namely women. I further find that the associate claimant and the minor claimant XXXX XXXX XXXX XXXX XXXX XXXX XXXX have a nexus to the ground of membership in a particular social group, being a member of the principal claimant’s family.
Gender Based Persecution
[14] The claimants are Egyptian citizens who had been living in Saudi Arabia, where the associate claimant had a temporary work permit. The principal claimant and her children moved back to Egypt in 2018 as they knew that the associate claimant’s work permit would be expiring shortly and they wanted to get the children settled into a new routine and school.
[15] Both the principal and associate claimants testified that they knew the associate claimant’s elder brother wanted to circumcise their daughters and that this was something that was viewed as important within the associate claimant’s family. However, the principal claimant testified that she did not take this threat seriously when they moved back to Egypt as she believed that she would be able to say no and to stop it. However, she indicated that she moved to Cairo, rather than Alexandria where her brother-in-law lived, to avoid him.
[16] The principal claimant testified that in XXXX 2019, shortly after she and the minor claimants moved back to Egypt, the associate claimant’s elder brother tried to take her daughter out of school so that he could circumcise her. The principal claimant explained that the school allowed her brother-in-law to see her daughter because they had the same last name. However, she received a telephone call from a family friend who witnessed her daughter crying when her uncle tried to take her from her school.
[17] When the principal claimant arrived at her daughter’s school, her brother-in-law threatened her, telling her that he would end her life if she did not permit him to circumcise her daughter. He then told the minor claimant that he would come back for her later.
[18] Following this incident, the principal claimant filed a police report and began accompanying her children to school everyday. She testified that she would wait at the school while her children were in classes and then walk them home. She was scared that her brother-in law would return for the children. She was worried that he could try to use her son as a pawn to try to get access to her daughter.
[19] In XXXX 2019, the principal claimant’s brother-in-law came to her home with a close friend, who is a police officer. The brother-in-law again asked for the minor claimant so that he could take her to be circumcised. The principal claimant asked him to leave and the situation escalated. He told her that he would “bury her”, that the police report she had filed had been withdrawn, and that the police officer accompanying him would imprison her if she went to the police again. Neighbours began to crowd around, and the police officer told everyone they should leave because this was a “family problem.”
[20] The principal claimant no longer believed that she and her children were safe. On XXXX XXXX XXXX 2019 she decided to move with her children to Sharkia Governorate, where she lived with a friend. She felt that she would be safe there because her name would not be on a lease. She also did not register her children in school so that they could not be traced by her brother-in-law. The principal claimant testified that she did not even take her children to get immunized because she did not want a record of them living in the new area.
[21] Approximately three weeks after they moved to Sharkia Governorate, the principal claimant noticed a strange man waiting outside of her friend’s house. Her friend’s children told her that he had asked about her children by name. When she went outside to speak with him, he showed her that he had a knife and said “when are you going to finish this?” He told her she should give her girls to her brother-in-law or he would kill her. He also told the claimant’s friend that she should distance herself from the principal claimant or she would also be harmed.
[22] The principal claimant and her friend went to the police station to file a report but they refused to investigate the incident.
[23] The principal claimant’s friend asked her to leave her house and the claimant took her children to go live with her father in Dakahlia. The principal claimant testified, however, that her father was not very supportive and believed that she should agree to have her daughters circumcised because her brother-in-law was the head of the family. Three days later, her brother in-law arrived at her father’s house. The principal claimant believes that her father called him.
[24] When her brother-in-law arrived at her father’s house, the principal claimant pretended to agree to have her daughters circumcised. However, she was able to leave for Canada before the procedure could be completed.
[25] The principal claimant testified that she is terrified that if she returns to Egypt her brother-in-law will force her daughters to undergo FGM and will kill her for disobeying him and for challenging his authority. She explained that her brother-in-law continues to call her father because he is looking for her and her family. The associate claimant also testified that he has received phone calls from his brother, asking when they will return to Egypt, as he believes they are currently in Saudi Arabia.
[26] The country condition documents for Egypt corroborate the facts alleged by the claimant and the objective basis for the claim. The prevalence of FGM in Egypt remains high, at 87.2% of all women aged 15-49. Data suggests that Egypt has the greatest number of women and girls who have experienced FGM of any country in the world. There is a markedly higher prevalence of FGM amongst girls and women living in upper Egypt, where the associate claimant’s family is from. FGM in Egypt is performed any time between birth and the age of 17, with most girls undergoing the practice at or before puberty. FGM is practised for several reasons in Egypt, but the most commonly cited are tradition, religion, and its association with marriage. Over half of men and women believe that FGM should be continued. Studies have shown that even physicians believe that FGM is required by religious precepts and have defended the practice.6
[27] I find that the prevalence of FGM in Egypt, the broad social support for the practice, as well as the actions taken by the principal claimant’s brother-in-law in order to force his niece to undergo FGM, the threats he has made against the family, and the profiles of the claimants as individuals who do not subscribe to the widely-practiced gender-based customs and traditions puts the claimants at significant risk in Egypt. In particular, I find that the minor claimant XXXX XXXX XXXX XXXX XXXX XXXX XXXX is at risk of being forced to undergo FGM, while her family members, including the principal claimant, the associate claimant, and the minor claimant XXXX XXXX XXXX XXXX XXXX XXXX XXXX, are at risk because they are her family members and have made it clear that they will not subscribe to gender-based customs and beliefs surrounding FGM that are prevalent in Egypt, and, as such, have been threatened by the associate claimant’s brother. I find that the claimants have established a well-founded fear of persecution if they were to return to Egypt.
State Protection
[28] The next element in my analysis is whether there is adequate state protection for the claimants in Egypt. While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that protection would not be forthcoming to the claimant.7
[29] In this case, the principal claimant testified that she approached the authorities on a number of occasions to obtain assistance with respect to her brother-in-law and never received any meaningful assistance. The first time she approached the police, after the brother-in-law tried to take her daughter out of school, the police were cooperative but only issued a report and did not take any steps to investigate the brother-in-law or assist the principal claimant. The second time the principal claimant approached the police, after she was threatened at her friend’s house in Sharkia Governorate, she testified that the police laughed at her and refused to take any actions. I note also that the principal claimant’s brother-in-law brought a member of the police force with him when he came to the principal claimant’s home in Cairo to threaten her, and that this member of the police force told neighbours who tried to intervene that the issue was a “family problem.”
[30] As stated above, Egypt has the greatest number of women and girls who have undergone FGM of any country in the world. The Egyptian government has taken steps to reduce FGM in the country, including by ratifying many of the international conventions and treaties related to FGM. Moreover, in June 2008 the Egyptian government passed legislation outlawing FGM in Egypt. In September 2016 further amendments were passed making FGM a felony and increasing the penalties associate with performing the practice.
[31] However, country condition documents indicate that despite these advances, legislation in Egypt addressing FGM remains insufficient and inadequately enforced. Between 2007 and 2013, several girls died undergoing FGM in the country. Moreover, the rates at which FGM are practiced remain high, and a recent study found that there had been little change in FGM rates between 2008 and 2015. A report authored by the organization 28 Too Many, has also found that conviction rates and sentences passed under Egypt’s anti-FGM legislation are also discouraging. The first conviction for conducting FGM was against a doctor in June 2013. After eighteen months, during which the doctor continued to practice medicine, he came to a financial arrangement with the victim’s family and only served three months of his sentence. Moreover, despite increased penalties following amendments in September 2016, sentences have remained low. In January 2017, following the death of 17-year-old girl who underwent FGM, the victim’s mother, doctor, and anaesthetist were only given one year suspended prison sentences and fines.8 It is clear from the country documents that while FGM is illegal in Egypt, enforcement of those laws is extremely limited, with prosecutions being very rare, sentences being extraordinarily lenient and state protection being almost non-existent.
[32] In view of this evidence, I find that state protection for FGM is inadequate. While the authorities have made efforts to address FGM, these efforts have not been effective on the operational level. The objective country information evidence demonstrates that state protection is rarely available from authorities in Egypt, and this has also been the experience of the claimants. I therefore find that the presumption of state protection has been rebutted in the case of the claimants.
Internal Flight Alternative (IFA)
[33] The final issue is whether the claimants have a viable Internal Flight Alternative (IFA) in Egypt. In order to determine whether an IFA exists, I must assess whether there is any location in Egypt in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.9 I find that the claimants do not have a viable IFA because I am satisfied that the principal claimant’s brother-in-law would have the motivation and the means to pursue them throughout Egypt.
[34] The principal claimant’s brother-in-law has demonstrated that he has the motivation to pursue the claimants throughout Egypt. Although he lives in Alexandria, he tracked down and pursued the claimants in Cairo, Sharkia Governorate, and Dakahlia. Moreover, he has continued to try to locate the claimants through their family members following their departure for Canada. The associate claimant has testified, and I accept, that the brother-in-law will be motivated to locate them due to the importance of performing FGM for his family and the fact that he is viewed as the head of the family and responsible for ensuring that everyone follows this cultural code.
[35] I also find on the balance of probabilities that the principal claimant’s brother-in-law would have the means to pursue the claimants throughout Egypt. The principal claimant testified that she believes her brother-in-law could track them down if her children were to register in school. Indeed, this is how her brother-in-law located them in Cairo. The associate claimant testified that his brother is powerful and has meaningful connections, including contacts in the police force, and that he could use these connections to find them. I note as well that the brother in-law has demonstrated in the past that he has the means to locate the claimants throughout Egypt, having tracked them to multiple destinations.
[36] Given the brother-in-law’s connections, his ongoing interest in the claimants, and his demonstrated motivation and ability to locate the claimants in the past, I find on a balance of probabilities that there is no viable IFA for the claimants.
CONCLUSION
[37] For these reasons, I find that the principal, associate, and minor claimants XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are Convention refugees and I accept their claims.
[38] I find that the minor claimant XXXX XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act, nor a person in need of protection pursuant to subsection 97(1), and I reject her claim.
(signed) Megan Kammerer
March 31, 2020
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996.
3 Exhibit 1.
4 Exhibit 1.
5 Exhibit 5.
6 Exhibit 3, National Documentation Package, (NDP), Egypt, September 30, 2019, Item 5.7.
7 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
8 Exhibit 3, NDP, Item 5.7.
9 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).