2024 RLLR 81

Citation: 2024 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: September 5, 2024
Panel: Kim Bugby
Counsel for the Claimant(s): Amro Hayek
Country: Egypt
RPD Number: TC3-49783
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX XXXX XXXX, who alleges to be a citizen of Egypt, and is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

[3] In deciding this claim, the Tribunal considered and applied the Chairperson’s Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).

[4] The claimant’s identity documents identify him as female, the claimant identifies as male, his chosen pronouns are he/him and this decision reflects the claimant’s choice of pronouns.

ALLEGATIONS

[5] The claimant’s allegations are set out in the Basis of Claim form (‘BOC’), exhibit 2. The claimant alleges a serious possibility of persecution in Egypt because of his sexual identity.

DECISION
[6] For the following reasons, the Tribunal finds that the claimant is a Convention refugee, pursuant to section 96 of the IRPA.

ANALYSIS

Identity

[7] The Tribunal finds that the identity of the claimant as a national of Egypt is established, on a balance of probabilities, by submission of his Egyptian Passport and other identity documents, exhibits 1 and 4.

[8] The Tribunal notes that the claimant was born in Kuwait; however, this does not constitute a country of reference.

[9] The claimant was born in Kuwait to Egyptian nationals and the objective evidence, at item 3.1 of the NDP for Kuwait, indicates that Kuwait does not bestow citizenship rights to children born to foreign nationals in Kuwait.

[10] The objective evidence further indicates that citizenship by naturalization is rare, and only available after a period of 20 years residency, a period greater than the claimant’s residency.

[11] The Tribunal further notes that the claimant resided in the United Arab Emirates (‘UAE’) from XXXX 2013 until XXXX 2023. However, the claimant was a temporary resident in the UAE under a work Visa tied to his ongoing employment.

[12] Item 3.2 of the NDP for the UAE confirms that foreign nationals are not generally granted citizenship under a highly restrictive immigration system.

[13] Accordingly, the sole country of reference in this case is Egypt.

Credibility

[14] Based on the claimant’s BOC narrative and the documents in the file, the Tribunal has noted no serious credibility issues and, on a balance of probabilities, accepts the following:

The claimant was born in 1977 in Kuwait but had only temporary status in that country; the claimant is a citizen of Egypt.

The claimant was born female but identifies as male. The claimant, in accordance with cultural norms, felt he had no option but to interact with society as a female.

At the age of 26, the claimant could no longer continue to struggle to live his life as a female and thereafter faced the loss of family, friends, and financial stability. The claimant was also subject to threats and harassment from society.

Unable to access gender-affirming surgery in Egypt, the claimant went to the UAE in 2013 in an effort to raise sufficient funds to access surgery in another country.

In 2019, the claimant underwent surgery at an unauthorized clinic without proper follow-up or ongoing care.

In 2023, the claimant travelled to Canada seeking refugee protection.

In addition to the claimant’s BOC narrative, the claimant submitted the following documents in support of his claim:

Letters of support from the claimant’s brother and sister substantiating the claimant’s struggles with his gender identity since childhood and the issues that he faced when he could no longer maintain the façade of being female.

Medical documents substantiating the claimant’s gender-affirming surgery.

Photographs substantiating the claimant’s gender transition.

[15] After reviewing the documents, the Tribunal has no reason to doubt their authenticity and accepts the evidence as establishing, on a balance of probabilities, the claimant’s subjective fear of persecution because of his sexual identity.

Objective Basis

[16] The Tribunal has examined the objective documentary evidence on country conditions in the 31 May 2024 National Documentation Package for Egypt (Exhibit 3). The objective evidence supports the conclusion that Egyptian citizens continue to be at serious risk from both state authorities and society generally, because of their sexual identity.

[17] The majority of the objective evidence references the risk to individuals of diverse sexual orientation. However, the Tribunal finds that the treatment of the broader 2SLGBTQI+ community is reflective of the risk faced by transgender persons.

[18] Item 2.1 – the US Department of State 2023 Human Rights Report – confirms that authorities regularly arrest and prosecute the 2SLGBTQI+ community. The 2SLGBTQI+ community also faces a high risk of discrimination and violence in society without adequate state protection:

Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics:

Criminalization:

While the law did not explicitly criminalize consensual same-sex sexual activity, authorities regularly arrested and prosecuted LGBTQI+ persons on charges including “debauchery,” prostitution, and “violating family values,” for which the law imposed sentences of up to 10 years in prison, significant fines, or both. Authorities also reportedly prosecuted LGBTQI+ individuals for “misuse of social media.” This resulted in de facto criminalization of same-sex conduct and identity.

According to a local rights group, authorities charged more than 50 defendants in at least eight debauchery cases during the year. Rights groups and activists reported police harassment of LGBTQI+ persons, including physical assault, forcibly soliciting bribes to avoid arrest, and forcing them to provide information concerning other LGBTQI+ individuals. There were reports authorities used social media, dating websites, and mobile phone apps to entrap persons they suspected of being gay or transgender, prompting the dating platform Grindr to issue a warning to its users in the country to exercise caution when interacting with unknown parties. Rights groups reported authorities, including the Forensic Medical Authority, conducted forced anal examinations in all cases involving “debauchery” charges, which rights groups indicated primarily targeted LGBTQI+ individuals.

In December, prosecutors charged a man with “incitement to lure males with the intention to commit immoral acts” and “assaulting family principles and values” using an online dating account, according to a local NGO. The prosecutor declared the forensic medical department performed a “medical examination to reveal the presence of traces of engaging in deviant activities,” which rights groups observed was a euphemism for forced anal examinations that LGBTQI+ community members were frequently subjected to when arrested.

In January, the BBC broadcast a documentary examining the practices of security forces and criminal gangs working in tandem to arrest and exploit members of the LGBTQI+ community using social media and dating applications.

In February, Human Rights Watch issued a report documenting 29 arrests and prosecutions in the country in recent years, including against foreigners, and concluded the arrests were the result of a coordinated policy – either directed or acquiesced to by senior government officials – of using digital methods to target LGBTQI+ individuals.

Violence and Harassment:

Local rights groups and media reported several incidents of domestic and street violence or threats of violence against LGBTQI+ individuals, including extortion attempts by criminal gangs entrapping members of the community via photographs or videos and threatening to expose the victims to family members or employers.

In January, Salama Dawood, president of al-Azhar University, called on “the world’s wise people” to criminalize homosexuality and establish deterrent punishments for its practice, during a speech at a conference of the Islamic Organization for Medical Sciences in Kuwait. Salama noted “true sharia has made the punishment for sodomy death for both the actor and the object of it,” and that “it is puzzling that the world does not proceed according to what is required by rational minds and common sense.

Discrimination:

The law did not recognize LGBTQI+ couples, and authorities did not use antidiscrimination laws to protect LGBTQI+ individuals. There was widespread public support for discrimination against the LGBTQI+ community. In July, the Supreme Administrative Court issued a final ruling upholding the dismissal of an employee of the National Media Authority due to his perceived sexual orientation. There was no specific law against homosexuality, but the disciplinary court that issued the original judgement considered the employee’s conduct, as depicted in an explicit video clip, as “a violation of civil service ethics.”

Local contacts reported several cases of landlords or neighbors trying to force LGBTQI+ persons to vacate their homes by threatening to file police complaints against them. There were no government efforts to address potential discrimination. LGBTQI+ persons rarely reported discrimination because they faced intimidation and the risk of arrest. The law gave officials the authority to deport LGBTQI+ foreigners or bar their entry to the country, and they infrequently did so.

Availability of Legal Gender Recognition:
The Egyptian Medical Syndicate allowed for gender-affirming treatment including surgery, with approval by a special committee composed of medical doctors and al-Azhar clergy. The committee relied on a fatwa stipulating gender-affirming treatment had to be “medically necessary” and justified by a “biological,” not a “mental,” matter. Thus, according to rights groups, the surgery was allowed only for intersex persons and the process existed more on paper than in practice, leaving transgender individuals to seek treatment from unregulated and often unsafe clinics. Activists contended the committee existed only for “propaganda purposes,” approved very few surgeries, and required those wanting treatment to undergo years of psychological monitoring. Medical providers who performed gender-affirming surgery without the committee’s approval were subject to criminal prosecution. Barring meeting these conditions, individuals could not change their identity documents to match the gender with which they identified.

Involuntary or Coercive Medical or Psychological Practices:
So-called conversion therapy was available and widely publicized by well-known therapists and religious leaders in both the Christian and Muslim communities. These programs often marketed themselves to family members of LGBTQI+ individuals; activists reported occasional involuntary enrollments in conversion programs. There was no information available on whether medically unnecessary and irreversible “normalization” surgeries were performed on children or on nonconsenting adult intersex persons.

Restrictions of Freedom of Expression, Association, or Peaceful Assembly:

Legal discrimination and social stigma impeded LGBTQI+ persons from organizing or advocating publicly in defense of their rights. State-controlled media did not allow the expression of opinions supporting LGBTQI+ rights. Talk show hosts frequently discussed such rights in homophobic terms and described them as an imposition of Western values on other cultures. LGBTQI+ civil society organizations could not register officially, and the LGBTQI+ community and its supporters faced severe limits on their ability to advocate for their rights due to the government’s general restriction on peaceful assembly and failure to provide the community any protection against violence or harassment.

[19] Item 6.5 – the Danish Immigration Service – 2022 Report – Situation of LGBT Persons – summarizes the situation as follows:

Egypt de facto criminalises same-sex relations under the anti-prostitution law, the telecommunications law and the cybercrime law. However, the laws do not specifically mention that sex between people of the same sex is illegal. Instead, LGBT persons are typically charged with debauchery, incitement to debauchery, public indecency, misuse of telecommunications or violation of family principles or values in Egyptian society.

Egyptian law enforcement targets and arrests individuals from the LGTB community using digital evidence. Police officers create fake same-sex profiles on dating applications through which they contact LGBT persons in order to set up a meeting where they will arrest them.

LGBT people are subjected to ill-treatment, including beatings and sexual violence, forced anal exams and virginity tests in police custody.

Many LGBT people practice self-censorship and live a low-key life. However, the risk of being outed or revealed is always present. LGBT persons experience bulliying and stigmatization in society and may also risk being monitored and blackmailed by gangs.
In Egypt, individuals who wish to undergo sex reassignment surgery, have to go through a long and complex process, and it is unlikely that they will be permitted to get the surgery.

[20] Having considered the totality of the documentary evidence, the Tribunal finds that the claimant has established a well-founded fear of persecution because of his sexual identity.

Nature of the Harm

[21] The Tribunal has examined this claim under section 96 of the IRPA, as it concludes that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically, membership in a particular social group, namely transgender persons.

State Protection

[22] The Tribunal finds that there is clear and convincing evidence that the state is unwilling to provide the claimant with adequate protection.

[23] The objective evidence indicates that the Egyptian police and authorities do not provide adequate protection to 2SLGBTQI+ persons suffering serious human rights abuses in Egypt, and in fact, actively persecute 2SLGBTQI+ persons.

Internal Flight Alternative
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[24] The Tribunal has examined whether a viable internal flight alternative exists for the claimant. Based on the evidence on file, the Tribunal finds that the claimant faces a serious possibility of persecution throughout Egypt.

[25] The objective evidence indicates that state authorities operate similarly throughout Egypt and societal treatment of 2SLGBTQI+ persons is similar throughout the country.

CONCLUSION

[26] In light of the preceding, the Tribunal concludes that the claimant is a Convention refugee, pursuant to section 96 of the IRPA and accepts this claim.

——— REASONS CONCLUDED ———