Citation: 2019 RLLR 185
Tribunal: Refugee Protection Division
Date of Decision: February 26, 2019
Panel: M. Moc
Counsel for the Claimant(s): Ameena Sultan
Country: Egypt
RPD Number: TB8-32331
Associated RPD Number(s): N/A
ATIP Number: A-2020-00518
ATIP Pages: 000796-000801
REASONS FOR DECISION
[1] These are the reasons for the decision in the claim of Mr. XXXX XXXX XXXX XXXX, who claims to be a citizen of Egypt and is seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1
EXPEDITED DETERMINATION
[2] Paragraph 170(f) of IRPA2 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.3 Further, subsection 162(2) of IRPA4 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.
[3] The claimant’s case was identified as one that could be processed through the RPD’s expedited process for Egyptian claims. The RPD received the claimant’s signed Certificate of Readiness5 for the expedited process on February 14, 2019. Having carefully considered the evidence in this case, the panel finds that it meets the criteria for expedited determination.
[4] This case has therefore been decided without a hearing, according to the Instructions governing the streaming of less complex claims at the Refugee Protection Division.6
ALLEGATIONS
[5] The following is a summary of the claimant’s allegations as outlined in the narrative to his Basis of Claim (BOC)7 form dated November 12, 2018.
[6] The claimant is a 26-year-old resident of Cairo who fears for his life on the basis of his sexual identity as a gay man in Egypt. He recalls first coming to the realization of being attracted to boys at around eleven or twelve years of age, and engaging in casual relationships in high school and during military service. The claimant communicated with men online and became familiar with other members of the LGBTQ community in Cairo. In September 2016, he was arrested for the first time and charged with practising homosexuality. Following his release from detention, he had difficulty finding employment and became a XXXX XXXX. In September 2017, he was arrested for the second time and sentenced to a six-month term in military prison.
[7] After his release from prison in May 2018, the claimant experienced fear on a daily basis. With the help of another friend who had also been imprisoned, the claimant was eventually able to obtain a Canadian visa through the Rainbow Railroad, an LGBTQ-rights organization, and left Egypt on XXXX XXXX XXXX XXXX. He filed a claim for refugee protection inland on December 12, 2018 in Toronto.
[8] The claimant fears persecution and harm at the hands of homophobic persons on the basis of his sexual identity in Egypt. He also alleges that the authorities are unable or unwilling to protect him, as a gay man, in Egypt.
DETERMINATION
[9] The panel finds that the claimant is a Convention refugee under section 96 of IRPA for the following reasons.
ANALYSIS
Identity—personal and national
[10] The claimant’ s identity as a national of Egypt has been established, on a balance of probabilities, by a valid Arab Republic of Egypt passport8 that was seized by the referring IRCC (formerly CIC) office.
Identity—Sexual Orientation/Gender Identity and Expression (SOGIE)
[11] The claimant has also established his identity as a gay man by way of his personal documentation, including but not limited to arrest records and court proceedings9 regarding charges of “immorality actions with men” which include “exchange of financial wage.”10
Credibility
[12] The panel has reviewed the claimant’s Basis of Claim (BOC),11 intake forms,12 GCMS notes by the Cairo visa post officer,13 and the claimant-specific documents disclosed by counsel,14 and has found the claimant to be credible regarding the central elements in this case – namely that he is a gay man who has previously been harassed and persecuted, including having faced criminal charges,15 on the basis of his sexual identity in Egypt.
[13] In reviewing the National Documentation Package (NDP) for Egypt,16 the panel has found the claimant’s personal evidence to be consistent with the objective country conditions documents before it. As such, the panel finds that the claimant has established, on a balance of probabilities, his profile as a gay man who has been targeted by Egyptian officials and homophobic individuals because of his sexual identity.
[14] As sexual orientation falls within the membership of a particular social group category, and thus forms a basis for refugee claims, as per section 96 of IRPA, the test is whether there is a serious possibility of persecution should the claimant return to Egypt.
[15] The panel finds, based on the evidence before it, that the claimant has met that test.
State protection
[16] In order to establish a claim pursuant to section 96 of the IRPA, the claimant must rebut the presumption of state protection. The claimant did not seek protection from the authorities, as the state itself was the agent of persecution in this particular case, through its discriminatory legal and judicial apparatus when interacting with LGBTQ persons in Egypt.
[17] The panel has before it country conditions documentation indicating that, even though same-sex relationships between consenting adults are not illegal, “the Law on the Combating of Prostitution, and the law against debauchery have been used liberally to imprison gay men in recent years.”17
[18] The panel notes the following:
Public morality is recognised by international law as grounds for limiting expression … [and] individuals who, through their sexual or gender expression, disrupt conservative binary gender models are especially vulnerable in Egypt, according to an activist who was based in Egypt through recent years. Through 2015 and 2016, widely publicised arrests continue. …
According to 76 Crimes, the largest reported number of arrests of LGBT people has been in Egypt, where a crackdown has been under way since 2013 as part of a larger government effort to arrest and harass political opponents, human rights defenders and journalists. In late-2016, LGBT community leaders estimate that as many as 500 LGBT people have been sent to prison.18
[19] Country documentation further states that
[a]fter a coup resulted in a new government in late 2013, the Egyptian Initiative for Personal Rights (EIPR) began documenting increased arrests and harassment of people perceived to be gay or transgender by the public morals police, with at least 77 arrests taking place between October 2013 and May 2014. Arrests continue at similar rates— many of them stemming from police efforts to entrap gay men by using social media.19 [citations omitted]
[20] Country documentation confirms that LGBTQ persons continue to be targeted by Egyptian authorities through the state’s penal and legal apparatus. The panel finds that the objective documentary evidence before it supports the claimant’s allegations, and that he has provided clear and convincing evidence of the state’s inability to protect him as a gay man. As such, the claimant has rebutted the presumption of state protection should he return to Egypt.
[21] In noting that the state itself is the agent of persecution in this particular case, the panel also finds that there is not an area of the country where the claimant would be able to reside and safely participate in the community, and as such there is no internal flight alternative available to the claimant anywhere in Egypt.
[22] Given the documentary evidence before the panel, both personal and objective, the panel finds that there is a serious possibility that the claimant could face persecution on the basis of his sexual orientation should he return to Egypt, and that state protection would not reasonably be forthcoming to him anywhere in the country.
CONCLUSION
[23] Based on the foregoing analysis, the panel has determined that the claimant has established that there is a serious possibility of persecution on a Convention ground as per section 96 of IRPA if he were to return to Egypt.
[24] The panel therefore finds that the claimant is a Convention refugee and accepts the claim.
(signed) M. MOC
February 26, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
2 Ibid., section 170(f).
3 Refugee Protection Division Rules (SOR/2012-256).
4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).
5 Exhibit 4.
6 Instructions governing the streaming of less complex claims at the Refugee Protection Division, effective January 29, 2019.
7 Exhibit 2.
8 Exhibit 1, package of information from the referring CBSA/CIC.
9 Exhibit 5, personal documents.
10 Ibid., page 19.
11 Exhibit 2.
12 Exhibit 1, package of information from the referring CBSA/CIC.
13 Ibid., see GCMS notes.
14 Exhibit 5.
15 Ibid., see arrest and court records, page 15-33.
16 Exhibit 3, National Documentation Package, Egypt, 29 June 2018.
17 Ibid., tab 6.1: Egypt. State-Sponsored Homophobia. A world survey of sexual orientation laws: criminalisation, protection and recognition. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Aengus Carroll; Lucas Ramon Mendos. May 2017.
18 Ibid.
19 Ibid., tab 6.2: Egypt. Dignity Debased: Forced Anal Examinations in Homosexuality Prosecutions. Human Rights Watch. 12 July 2016.