2019 RLLR 166 – Refugee Law Lab

Citation: 2019 RLLR 166
Tribunal: Refugee Protection Division
Date of Decision: June 20, 2019
Panel: Roslyn Ahara
Counsel for the Claimant(s): Michael F. Loebach
Country: Egypt
RPD Number: TB8-01427
Associated RPD Number(s): TB8-01467, TB8-01477, TB8-01478
ATIP Number: A-2020-00518
ATIP Pages: 000318-000326

REASONS FOR DECISION

[1] XXXX XXXX XXXX (the principal claimant, hereinafter referred to as the P.C.), her spouse, XXXX XXXX, their daughter, XXXX XXXX XXXX all citizens of Egypt, and their son, XXXX XXXX XXXX who is a citizen of the United States (US), are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2] The claimants’ allegations are described in detail in the P.C.’s Basis of Claim Form (BOC).² However, they can be summarized as follows.

[3] The P.C.’s father is Palestinian, and despite the fact that she was born in Egypt to an Egyptian mother, it was difficult for her to get Egyptian citizenship. She was issued a Palestinian travel document from birth. Finally, she obtained Egyptian citizenship in 2012 after the revolution.

[4] The P.C. faced a lot of harassment because of her Palestinian roots through school and even in her adult life. In 2011, she became engaged to an Egyptian military officer, following which she discovered that he was abusive, controlling and he wanted her to leave her employment and wear a hijab. When she refused, he hit her, so she ended the engagement.

[5] On XXXX XXXX XXXX XXXX, the P.C married another man, XXXX XXXX. However her previous fiancé would harass both her and her husband until she left for Canada.

In February 2014, state security came to the P.C.’s husband’s father’s home, accusing him and the P.C.’s husband of being a member of the Muslim brotherhood. On December 17, 2017, an attempt was made to kidnap the claimants’ daughter.

[6] On November 01, 2017, the P.C.’s husband’s Kuwait visa was revoked. She and her husband re-availed themselves to Egypt multiple times from Saudia Arabia, Kuwait, and even the US (after her son was born there) in 2016 and 2017.

DETERMINATION

[7] The panel finds that the P.C., her husband and their daughter would face a serious possibility of persecution on a Convention ground, and that, on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to Egypt.

[8] No evidence was adduced with respect to the P.C.’s son’s claim against the US. Accordingly, the panel finds that XXXX XXXX is not a Convention refugee, nor a person in need of protection.

ANALYSIS

[9] The determinative issues in this claim are credibility, subjective fear and state protection.

Identity

[10] On a balance of probabilities, the panel finds that the claimants have established their identities. They have submitted Egyptian passports for the P.C., her husband and daughter,³ Egyptian citizenship,⁴ and marriage certificate,⁵ and a US passport for their son.⁶They have also provided a letter which indicates the termination of the P.C.’s husband’s employment in Kuwait, and his residency permit.⁷

Credibility

[11] In considering credibility, the panel is aware of the difficulties that may be faced by the claimants in establishing his claim, namely, the setting of the hearing room, and the stress inherent in responding to questions.

[12] The onus is on the person making a refugee claim to present evidence that is credible on a balance of probabilities to support the allegations which form the basis of his claim.⁸ In this case, the panel finds that the claimants have met that onus.

[13] While statements given under oath are presumed to be true, that presumption can be rebutted by contradictions or inconsistencies in the evidence.⁹ In reviewing the evidence, the panel “may also conclude that a claimant’s evidence is implausible, or improbable, or dubious, or untenable, or unreliable, or absurd, or unconvincing.”¹⁰

[14] The panel found the P.C.’s husband to be candid in his responses, and there were no inconsistencies or contradictions.

Subjective fear

[15] These claims were originally set down pursuant to section 170(f) of the IRPA, which provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the Minister has notified the RPD of the Minister’s intention to intervene within the time limit set out in the Refugee Protection Division Rules.¹¹ Further, subsection 162(2) of IRPA directs “each Division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”¹² This claim was identified as one that could be processed through the RPD expedited process for Egyptian claims. The RPD received the claimants’ signed certificate of readiness for the expedited process on August 13, 2018.¹³ Having carefully considered the evidence in this case, it was deemed necessary to conduct a hearing to examine the subjective fear of the claimants, given the issues of failure to claim elsewhere, re-availment, and delay in claiming, and also to clarify the countries of reference.

[16] After hearing the evidence the panel found the following:

The P.C.’s daughter, although born in Saudi Arabia has no status there, but is a citizen of Egypt.
The P.C.’s husband has no residency rights in Kuwait after losing his employment there.
The P.C. also fears the fact that her father was a Palestinian.
The P.C.’s husband, who provided the testimony, acknowledged that he had applied for a US visa in 2014, but was rejected due to insufficient documentation on two occasions. However, they were accepted in May 2017.
The P.C.’s husband lost his status in Saudi Arabia as a consequence of losing his employment 2011-2014.
Six months later, the P.C.’s husband went to Kuwait, and he lost his status in November 2017.
XXXX 2017, the P.C. and her husband went to the US to visit and have a baby. According to the husband’s testimony, he had insurance, and his wife was granted permission to travel in a late pregnancy.
According to the P.C.’s husband, their problems did not begin until after their return from the US on XXXX XXXX XXXX 2017.
The claimants left Egypt and went to the US as they already had valid visas, but it was always their intention to claim in Canada, because the P.C. has relatives here.
The claimants fear the P.C.’s former fiancé. They went to the police, but when the police became aware that the perpetrator was an army officer, they decided not to get involved in any investigation.
The P.C’s husband. also fears the fact that he has been perceived to be a part of the Muslim Brotherhood.

[17] The panel was satisfied after examining the foregoing that other than their trip to have a child born in the US, their re-availments were not abnormal, because the P.C.’s husband had valid employment, and the incident which gave rise to their departure had not occurred earlier.

[18] Moreover, the panel notes that the claimants provided copious documents to support their claims. These included identity documents, termination of employment documents,¹⁴declarations from the P.C.’s father, brother, and friend, her husband’s brother, father and uncle, and an investigation report.¹⁵ The panel further finds that the evidence contained in the claimants’ record and their testimony, is corroborated by the documentary evidence.

[19] In view of the above, and in the context of a forward-looking assessment of the claimants’ fears, the panel finds that should the claimants return to Egypt, there remains a risk of persecution beyond a mere possibility. The risk is further underscored by the documentary evidence adduced concerning the absence of state protection,¹⁶ as well as the absence of a viable IFA for the claimants in view of his particular circumstances.

[20] Country documents indicate that significant human rights issues in Egypt include arbitrary or unlawful killing (by government agents), torture, and harsh and potentially life-threatening prison conditions.¹⁷ Furthermore, the Muslim Brotherhood has been outlawed and hundreds of Muslim Brotherhood members and supporters have been put on trial and given harsh sentences.¹⁸ Human rights organizations have concerns about the fairness and transparency of these trials.

[21] The panel is of the view that the claimants’ allegations in their BOC narrative are, on the balance of probabilities, true. The panel has does not have a good reason to not believe the claimants’ allegations.

Prospective Risk of Return to Egypt

[22] The claimant’s husband fears persecution if he returns to his country of nationality, Egypt, because of his political opinions. As explained above, he has been accused of being affiliated with the Muslim Brotherhood and as such, he is considered a political opponent by the current Egyptian regime. The panel finds that the P.C.’s husband has established a link between his situation and a Convention ground, that is, his political opinions, whether real or imputed.

[23] Furthermore, the P.C. and her husband are being targeted by a member of the army, and the police are refusing to conduct any investigation or provide any protection.

[24] The panel has also taken into consideration the evidence regarding the current situation in Egypt, particularly concerning those perceived as being political opponents to the regime.¹⁹ According to the objective evidence, the Egyptian authorities are known for their repression of freedom of expression and association, notably repression of those who are considered political opponents.²⁰ The US Department of State reports that the most significant human rights issues included:

… unlawful or arbitrary killings by the government or its agents and terrorist groups; forced disappearances; torture; arbitrary detention; harsh and life threatening prison conditions; arbitrary arrest and detention; political prisoners; arbitrary or unlawful interference with privacy; undue restrictions on free expression, the press, and the internet, including censorship, site blocking, and criminal libel; substantial interference with the rights of peaceful assembly and freedom of association, including government control over registration and financing of nongovernmental organizations (NGOs) …²¹

[25] According to the objective evidence on file, there are numerous reports that the Egyptian forces have used excessive force against activists and opponents, particularly during the demonstrations in 2011 and in 2013.²² A new wave of arrests began in May 2015. Sources indicate that thousands of people who are perceived as opponents to the current government have been detained for extended periods of time, which, in many cases, could be considered enforced disappearances.

[26] There are also recent reports that indicate that members of the Egyptian military have committed acts that may amount to human rights violations, including arbitrary arrests and detention, torture, enforced disappearances, and extrajudicial killings.²³ The objective evidence on file indicates that family members of perceived opponents were also subjected to these treatments. Finally, reports also indicate that there were problems with impunity for officials who committed abuses and unfairness in the judicial system.

[27] The panel notes that in this particular case, according to the allegations, which have been deemed credible, the P.C.’s husband has been accused of being a member of the Muslim Brotherhood. In consideration of the entirety of the evidence, including his particular situation, and in the absence of evidence to the contrary, the panel accepts that the P.C.’s husband may be perceived as a political opponent upon returning to Egypt.

[28] For all of the reasons explained above, considering the treatment of real or perceived political opponents and dissenters by the Egyptian authorities, as well as the risk from the P.C.’s former fiancée, the panel concludes that there is a serious possibility that the P.C.’s husband may face persecution based on a Convention ground, that being his real or perceived political opinion, upon return to his country of nationality, Egypt.

State protection and internal flight alternative (IFA)

[29] Case law establishes a presumption that a state is capable of providing adequate protection to its citizens. In order to rebut this presumption, claimants must demonstrate, through clear and convincing evidence, that the authorities are not able or willing to provide them adequate protection given the alleged risks. Claimants must establish that they have a well founded fear of persecution throughout their country of nationality.

[30] The panel has taken into consideration that the P.C.’s husband has been accused of being a member of the Muslim Brotherhood by the Egyptian authorities, he and the P.C. are fearful of her former fiancé, and she has encountered problems as a result of her father being a Palestinian.

[31] As explained above, the panel has taken into consideration the objective evidence regarding the situation in Egypt, particularly regarding the treatment of political opponents and those who are perceived as such. Regarding those considered opponents and dissenters, it is reported:

The authorities used prolonged pre-trial detention, often for periods of more than two years, as means to punish dissidents.²⁴

According to the Report of the OHCHR Mission to Egypt in 2011:

…In addition, strikes, unregistered financial donations were formally banned, and thousands of opponents were arbitrarily detained and allegedly tortured. In fact, the Emergency Law gave the Government the right to detain individuals indefinitely, without any judicial safeguards.²⁵

President SISI has come under repeated international criticism for an ongoing government crackdown against various forms of political dissent and freedom of expression. Certain practices of Sisi’s government, the parliament, and the security apparatus have been contentious, including:

… police brutality, the apparently deliberate use of torture by security forces, and reported enforced disappearances of political opponents…²⁶

[32] As indicated above, there are reports of impunity for officials who committed abuses.

[33] Upon consideration of the entirety of the evidence, the panel finds that the treatment of political opponents and dissidents, orthose perceived as such, is not limited to any regions in Egypt, but is widespread. The panel notes that the laws currently used to repress political opponents are national laws, and may be applied throughout Egypt.

[34] Therefore, for all of the reasons explained above, and in consideration of the claimant’s particular situation, as well as the current conditions in Egypt, the panel finds that there is clear and convincing evidence that state protection is not adequate for the claimants if they were to return to their home country at this time. The panel concludes that the presumption of state protection has been rebutted in these particular circumstances.

[35] The panel further finds that there is a serious possibility of persecution for the claimants throughout Egypt. Therefore, a viable IFA is currently not available for the claimants within Egypt.

CONCLUSION

[36] Having considered all of the evidence, the panel finds that the claimants, the P.C., her husband, and their daughter, are Convention refugees as set out in section 96 of the IRPA. Their US-born son, XXXX XXXX XXXX, is determined not to be a Convention refugee, nor a person in need of protection.

(signed) ROSLYN AHARA

June 20, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, [IRPA], sections 96 and 97(1).

2 Exhibit 2.1, Basis of Claim Form (BOC) – TB8-01427.

3 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copies of Passports.

4 Exhibit 4, Identity Documents 1, at pp. 33-35.

5 Ibid., at p. 23.

6 Exhibit 5, Identity Documents 2, at pp. 28-33.

7 Exhibit 4, Identity Documents 1, at pp. 73-74.

8 Orelien, Joseph v. M.E.l. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).

9 Maldonado, Pedro Enrique Juarez v. MCI (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

10 X (Re), 2003 Can LII 68792 (CA IRB); and Sung, Wei Hao v. M.C.l. (F.C.T.D., no. T-3070-92), Joyal, February 6, 1996, at para 25.

11 IRPA, supra, footnote 1, section 170(t).

12 Ibid., section 162(2).

13 Exhibit 7, Certificates of Readiness (COR) and Country Conditions, COR.

14 Exhibit 4, Identity Documents l; and Exhibit 5, Identity Documents 2.

15 Exhibit 6, Claim Documents, at pp. 4-25, 29-34, 38-43, and 50-52

16 Exhibit 3, National Documentation Package (NDP) for Egypt (March 29, 2019), items 2.2, 2.6, 3.4, and 4.7.

17 Ibid., item 2.1.

18 Ibid., item 4.5.

19 Ibid., item 2.1.

20 Ibid., items 2.1-2.4.

21 Ibid., item 2.1.

22 Ibid.

23 Ibid., items 2.1-2.3, and 10.1.

24 Ibid., item 2.2.

25 Ibid., item 2.6.

26 Ibid., item 4.7.