2019 RLLR 171

Citation: 2019 RLLR 171
Tribunal: Refugee Protection Division
Date of Decision: June 27, 2019
Panel: M.J. Vega
Counsel for the Claimant(s): Sherif R Ashamalla
Country: Egypt
RPD Number: TB7-16851
Associated RPD Number(s): TB7-16861
ATIP Number: A-2020-00518
ATIP Pages: 000507-000518

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claims of XXXX XXXX XXXX and XXXX XXXX XXXX. The claimants are married spouses, who claim to be citizens of Egypt, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]     The allegations in this case are found in the male claimant’s (principal claimant) Basis of Claim (BOC) form which will be summarized.

[3]     The problems for these claimants commenced when the male claimant stood by and defended his Christian friends before a customary council session on 16 September 2016. The customary council was convened to settle a sectarian dispute between his Christian friends and Muslim tenants of the property owned by one of the friends. Many of those present were Salafists who follow a stricter, literalist and more puritanical interpretation of Islam. The customary council session was to determine the sectarian dispute between the male claimant’s friends, the Christian brothers, one of whom was the property owner and his two tenants who were also brothers, and the Christian guard, whom the Christian brothers defended against the aggression of the Muslim tenants. In the altercation that ensued, one of the Muslim tenants was struck with the iron skewer he used to threaten the house guard. The Christian owner had taken the skewer from the tenant and beat him with it allegedly in self defense. The tenant later died in hospital a few days later. The police made several arrests of the involved parties. Given the appearance of sectarian strife, the case was transferred to a customary council to adjudicate the dispute. The claimant was invited to attend the last session of the customary council. Members of a Salafist Jihadi group, one of the most radical groups in Egypt, were part of the customary council. Also present were the head of the Security Department in the Red Sea Governorate and the head of the National Security Department and the Salafist radical group was forcing the authorities to accept their point of view. In their view, it was unacceptable that a Christian was the offender who victimized a Muslim.

[4]     The claimant expressed his opinion which opposed that of the Salafists and he was on the side of his Christian friends. It was the council that decided that the Christian offenders would pay the victim’s family in compensation for the death, the amount of two million Egyptian pounds was fined. The claimant’s position on the side of his Christian friends, given that he was a Muslim, angered a famous radical Muslim named XXXX XXXX. He accusingly asked the claimant if he was a Muslim or a Christian, which the claimant understood is a serious accusation in Egypt. The claimant also accused the council of unfairness and criticized the way they interpreted the Islamic religion. In response, Mr. XXXX XXXX became angry and approached the claimant and told him that he must reconsider his opinions against Islam or they will consider him an apostate. The claimant replied saying, “You are the ones that do not relate to Islam at all; you order a compensation of two million Egyptian pounds, for an accidental death by self-defence. This is not fair.” XXXX XXXX then threatened the claimant saying that they will find him even if he goes to the end of the world as they have people everywhere in Egypt and they will teach him right from wrong. The claimant took this as a threat that they would hurt him. Later in February 2017, he was contacted by this radical group and they threatened him and his wife because of her not wearing the Muslim dress. The claimant responded that they would not be able to hurt either him or his wife as they have a strong police department in Egypt that would protect them. In April while walking with his wife in Giza, they were assaulted and beaten by young people. During the attack one of the assailants stated “XXXX XXXX is telling you, hypocrite, apostate, that you are condemned by the rule of apostasy, you and your wife both. You know what apostasy means, this time we beat you, next time we slaughter both of you.” After receiving medical treatment for their injuries they had a lawyer file a report with the police on their behalf regarding the assault both claimants had suffered; however, as the issue was seen as a sectarian issue, it would have to be reported to the commanding officer and any report made would have to first be approved by the National Security authorities. The officer advised the lawyer to tell the claimants to stay away from Cairo for a couple of days because of the high risk that members of the radical group would find them. The claimant gave his lawyer power of attorney to file a case against the person known as XXXX XXXX and the claimants moved around Egypt hiding among friends to avoid the radical persons looking for them.

[5]     The case was filed on May 21, 2017and the court set a date for a hearing on July 1, 2017. The court also ordered the police to investigate the matter and although they did not find XXXX XXXX, the claimant received threatening calls again and he was advised by his lawyer to flee the country and not return to Egypt. He fled to the USA on XXXX XXXX, 2017 where he stayed with a friend while his lawyer in Egypt arranged the translation of the claimant’s documents to be presented at his hearing. While waiting the month that it took for the translation, the male claimant continued to receive threatening calls on his Egyptian phone number. He also communicated with his wife using the internet. They decided to turn off their respective phones. The male claimant travelled to Canada by air on XXXX XXXX, 2017 and his wife arrived on XXXX XXXX, 2017 from Egypt, from where she had been in hiding with a friend. They subsequently made a claim for refugee protection. They fear that if they return to Egypt, the Salafist group members will find them and carry out their threats.

DETERMINATION

[6]     The panel finds that the male claimant is a Convention refugee. However, the panel finds that the female claimant is not a Convention refugee. The panel’s reasons for the respective and different determinations are as follows.

ANALYSIS

Identity

[7]     The panel finds that the claimants are both nationals of Egypt. The male claimant is Egyptian by his birth in Egypt and the female claimant by naturalization in 2012. This has been established by their testimony and by the supporting documentation filed, namely their respective Egyptian passports found in Exhibit 1, and from this evidence the panel concludes, on a balance of probabilities, that the claimants each have Egyptian citizenship.

[8]     However, in the case of the female claimant XXXX XXXX XXXX, the panel determines that she is also a citizen of the Philippines by her birth in that country. It is merely a formality for her to swear an oath of allegiance and she would be considered a dual citizen by the government of the Philippines.

Nexus

[9]     In this case, the nexus to the definition is the imputed religion or lack of Islamic faith of the claimants, but primarily that of Mr. XXXX who came to the attention of a radical Salafist Jihadi group by his defense of his Coptic Christian friends who were one of the parties in a sectarian dispute. The nexus is the same for Ms. XXXX in that she is seen to be non-conforming, or not Islamic enough by her not wearing the Islamic dress despite being a convert from Christianity to Islam.

[10]   The documentary material in the National Documentation Package in sections 1, 2, and 12 speaks about the serious possibility of violence, harassment, and persecution at the hands of the Muslim community of the State and also extremist groups to persons who are perceived as non-Islamic or apostate which I mentioned before or anyone who insults the religion.

[11]   According to the claimants’ evidence, they seem to understand that they were being accused of not being Islamic enough by not wearing the Hijab in the case of Ms. XXXX as well as by having the Christian friends whom you defended against a Muslim in a dispute. The male claimant believes that as retribution for defending Christians against a Muslim, he may be accused of apostasy or treated as an apostate.

[12]   Furthermore, with respect to Ms. XXXX, by not wearing the Islamic dress, such as the hijab, she was considered not Islamic enough and therefore there would be consequences according to this radical group that was sending her husband these threats and the consequences would be for her as well as for her spouse by his not insisting or not making her conform and wear the attire the Salafist radical group, deemed necessary.

Credibility

[13]   The panel found the claimants to be credible witnesses. They provided their answers at this hearing without embellishment and they answered all the questions without discrepancies in their evidence. Their responses were consistent with the Basis of Claim form and with the other evidence in this case. Many questions were asked and their forthright responses assisted in establishing their credibility in a favourable manner. Therefore, as they were found to be credible witnesses, the panel accepts their allegations as credible.

State protection in Egypt

[14]   The documentary material clearly indicates that anybody who is perceived to be a non­ believer in Egypt or a non-conformist to the social or religious mores, or someone who is perceived to not have faith is considered to have breached the social or religious mores and in some cases not perhaps in this case where they have not been accused of apostasy although the male claimant was threatened that he would be, but in other cases where persons have been accused of apostasy, that actually reaches the level of being considered a crime.

[15]   The documentary material Exhibit 4, Sections 1, 2 and 12 speaks about the serious possibility of violence or harassment and persecution at the hands of the Muslim community by extremists groups to persons who they perceive to be non-Islamic or apostate or anyone whom they perceive to have insulted the religion.

[16]   The documentary material found in both the (NDP) National Documentary Package and, counsel’s package of Exhibits 8 and 9, speaks about the human rights situation in Egypt which has deteriorated and continues to deteriorate.

[17]   In Item 2.2, the annual report by Amnesty International titled, Egypt 2017/2018 speaks about the human rights situation as it continues to deteriorate and about how the human rights crisis continued unabated. The authorities used torture and other ill treatment and enforced disappearance against hundreds of people and dozens were extra judicially executed with impunity. While in previous years the authorities had arbitrarily restricted the rights to freedom of expression, association, and peaceful assembly, they escalated the crackdown of civil society by subjecting NGO staff to additional interrogations, travel bans and the freezing of assets. Arbitrary arrests and detentions which were then followed by grossly unfair trials of government critics, peaceful protesters, journalists and human rights defenders. These acts by authorities occurred routinely. In some cases detainees in political cases or government opponents were held in prolonged detention without charge or trial. In general, many human rights groups throughout the world believe that the Egyptian authorities have misused many of their powers against their own citizens.

[18]   According to Item 2.2 of Exhibit 4, the latest Amnesty report regarding the exercise of freedom of religion, the authorities continued to violate this freedom by discriminating against Christians and there was continued impunity for sectarian attacks on Christian communities with the authorities relying on customary reconciliation and settlements agreed by local authorities and religious leaders. The violence by non-state actors against Christians increased significantly given the impunity by the authorities. While the claimants are not Christians, they are perceived as non-Muslims or apostates because the male claimant is taking the side of Christians over Muslims and his wife does not conform to the Islamic dress in public.

[19]   The panel finds that the claimant would not receive protection from the Egyptian authorities under the current regime and given their past experience and according to what the documentary material states about the human rights situation in Egypt. It has continued to deteriorate and the authorities arbitrarily restricted the rights to freedom of expression, association, peaceful assembly, and many other civil rights. Despite the semblance of legal court action in the claimant’s case against XXXX XXXX, the police had previously refused to take a report and advised him through his lawyer, to flee the area and not to risk being found by the Jihadists. Therefore, their actions of commencing an investigation were only initiated by the court ordering it. The police, as an arm of the Egyptian government do not seem able to protect the claimants based on the preponderance of material from the NDP and particularly Item 2.7., which speaks about the growth of Jihadists groups in Egypt, some with ties to ISIS. Furthermore, when a charge of apostasy is brought against someone or a charge of denigration of religions, the treatment meted out by the police can be considered to be persecutory. In Item 12.1, at page 10 it states the following, regarding such treatment:

[20]   In August police arrested and interrogated a man whom they alleged had converted from Islam to Christianity. Police released him, reportedly telling him he was too old to withstand the treatment they ordinarily would give to apostates from Islam, according to sources.

Internal Flight Alternative

[21]   The claimants cannot go elsewhere in the country to stay safe without having to hide because they would face the same possibility or serious grounds of persecution throughout the entire country as the radical Jihadists are found throughout all of Egypt according to the preponderance of the documentary materials.

The Philippines – Female Claimant’s Second Country of Reference

[22]   According to Williams¹ a claimant may be considered to be a national of a country where the evidence establishes that it is within their control to acquire the citizenship of that country. If there is an automatic right to citizenship in that country under the law, if there is no discretion on the part of the Philippine government to refuse her citizenship and if the claimant can re-acquire Philippine citizenship by requirements that are mere formalities, then the claim can be assessed against the Philippines. Furthermore, if the claimant has no well-founded fear of persecution in that country of nationality then the claim for refugee status will be denied.

[23]   The female claimant is a naturalized citizen of Egypt as of 2012. She was born in the Philippines and had that citizenship since her birth to at least one Filipino citizen. The matter of dual citizenship is addressed in Item 3.5 of the National Documentation Package.² According to the information contained in this document, the claimant was a dual citizen of the Philippines and Egypt as a result of the passage in 2003 of Republic Act (RA) 9225. This document states the following at page 2:

How does one reacquire Philippine citizenship under RA 9225?

Natural-born Filipinos who lost their Filipino citizenship through naturalization in a foreign country may re-acquire Philippine citizenship by taking the Philippine Oath of Allegiance before a duly authorized Philippine official. The Philippine Oath of Allegiance does not require a person to renounce his allegiance to any other country.

[24]   Section 3 of the Republic Act No. 9225, which was passed on 29 August 2003, states the following:

Section 3. Retention of Philippine Citizenship – Any provision of the law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization of citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship” upon taking the following oath of allegiance to the Republic:

“I________, solemny (sic) swear (or affrim) (sic) that I will support and defend the Constitution of the Republic of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion.”³

[25]   The previously-mentioned Act further states that:

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

State Protection in the Philippines

[26]   The female claimant stated she fears returning to the Philippines as she fears that her family members will cause her problems. They have rejected her since they learned of her conversion to Islam in 2005 after she told her mother of the conversion when she was to marry her spouse, a Muslim. She had converted in 1996 and returned to the Philippines in 2004 but had not told anyone of her conversion fearing their rejection. When she was to marry she told her mother that she was marrying a Muslim and was asked why a Muslim. Then when she told her mother that she had converted she was not accepted. Her cousin XXXX in the Philippines, who does not care about the conversion was told to tell the claimant that she is a Muslim and she has nothing in the Philippines. The claimant understood that to mean that she is not to receive any inheritance as a result and that they have divided up any money that there was and have purposely excluded her from receiving a share. Furthermore, the female claimant believed that her Muslim marriage would not be recognized in the Philippines and thus it would need to be registered but would not be allowed to register it. The panel has no evidence that a Muslim marriage would not be registered in the Philippines. On the contrary, having consulted Exhibit 5, the NDP for the Philippines dated 30 April 2018, at Item 12.1 the International Religious Freedom Report indicates that about 10 to 12 percent of the population was estimated in 2012 to be Muslim. The majority of Muslims reside in Mindanao and nearby islands in the south with an increasing number of Muslims migrating to the urban centers of Manila and Cebu. The female claimant’s family live in Iloilo City which is a one hour flight from Manila. The claimant has not rebutted the presumption of state protection regarding the Philippines should any family member try to cause her harm due to her conversion to Islam. Even if they were to learn of the claimant being in the Philippines and were to travel there to locate her, the panel finds that there would be adequate state protection for her in the Philippines.

[27]   States are presumed to be capable of protecting their citizens, except in situations where they are in a state of complete breakdown4. From the documentary evidence,⁵ the panel finds that the Philippines, regardless of its current political, economic, cultural and social problems, is not a state that is close to a complete breakdown. Consequently, the presumption that it is capable of protecting its citizens applies.⁶ According to the documentary evidence, the Philippines is a functioning multiparty, constitutional republic and a democracy. Therefore the presumption that the state is capable of protecting its citizens supersedes the principle that international protection should be sought. Where a state is in effective control of its territory, has police and civil authority in place and makes serious effort to protect its citizens, the mere fact that the state’s efforts are not always successful will not rebut the presumption of state protection.⁷

Burden of Proof

[28]   Absent an admission by the state of its inability to protect the claimant (the evidence in this regard is silent), the burden of proof is on the claimant to show through “clear and convincing” evidence the state’s inability to protect her and thus successfully rebut the presumption of state protection.⁸ Such evidence could be past personal incidents in which state protection did not materialize or evidence of similarly-situated persons let down by state protection mechanisms. Failing this, the claimant could provide reliable and probative evidence that satisfies the Refugee Protection Division (RPD), on a balance of probabilities, that the state protection in the Philippines respectively, is inadequate.⁹

[29]   There is legislation in the Philippines, known as Republic (RA) 9262, Anti-Violence Against Women and their Children Act of 2004, which criminalizes violence within intimate relationships and the family. Response to Information Request number PHL105113.E¹⁰ reports about the efforts that government agencies have made to address the issue of violence against women and provide state protection. It speaks about the governmental agencies, mechanisms and support services in place to deal with this type of violence. It explains the different restraining orders such as the Barangay protection order, the temporary protection order and the permanent protection order. An Ombudsman is present in the country to deal with complaints when victims feel that the authorities have treated them unfairly.¹¹ The government has taken measures to deal with violence against women and therefore has demonstrated a willingness to deal with this issue. Moreover, it appears that their efforts have been reasonably effective on an operational level. Consequently, while the protection provided by state authorities in the Philippines may not be perfect, it is adequate in the panel’s opinion.

CONCLUSION

[30]   Based on the foregoing reasons, the panel finds that, XXXX XXXX XXXX, is a Convention refugee. Also based on the foregoing reasons, in the protection claim of XXXX XXXX XXXX, the panel finds that she is not a Convention refugee or a person in need of protection, given the panel’s finding that there is state protection available to her in the Philippines, her second country of reference. Furthermore, she has not rebutted the presumption of state protection in the Philippines, as required.

[31]   Thus, the claim of XXXX XXXX XXXX is rejected and the panel finds that she is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act.

[32]   The panel further finds that the claimant, XXXX XXXX XXXX is a Convention refugee and his claim is allowed.

(signed) M.J. Vega

1  Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126

2 Exhibit 5, National Documentation Package (NDP) Index for Philippines, version 30 April 2018, Item 3.5, Citizenship Retention and Reacquisition Act of 2003. R.A. 9225/ Dual Citizenship.

3 Exhibit 3, National Documentation Package (NDP) Index for Philippines, version 29 April 2016, Item 3.3, Citizenship Retention and Re-acquisition Act of 2003, Republic Act No. 9225

4 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, decary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).

5  Exhibit 11, National Documentation Package (NDP) for Cyprus, version 20 June 2016.

6  Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4^th) 1, 20 Imm. L.R. (2d) 85, at 709.

7 Villafranca: ME.I. v. Villafranca, Ignacio (F.C.A.,no. A-69-90), Marceau, Hugessen, decary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).

8 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4^th) 1, 20 Imm. L.R. (2d) 85, at 724.

9  Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). para 30.

10 Exhibit 5, NDP Index, Item 5.1, Response to Information Request PHL105113.E.

11 Exhibit 5, NDP Index, Item 2.1, U.S. Department of State Report for the Philippines for 2017