VB8-01245

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : VB8-01245 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision December 3, 2018 Date de la décision Panel Paula Faber Tribunal Counsel for the person(s) who is(are) the subject of the appeal Fritz Gaerdes Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Immigration, Refugees and Citizenship and Minister of Public Safety (Appellant) appeal the decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX XXXX XXXX XXXX (Respondent), a citizen of Egypt. [2] The claim was decided without a hearing pursuant to the Immigration and Refugee Board's Policy on the Expedited Processing of Refugee Claims1 and subsection 170(f) of the Immigration and Refugee Protection Act (IRPA).2 [3] The Minister did not file a notice of intervention in this matter before the RPD. [4] The respondent's claim was accepted by the RPD in a written decision and reasons dated February 20, 2018. [5] The appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute its own finding that the respondent is not a Convention Refugee or person in need of protection, or refer the matter back to the RPD for re-determination. [6] The respondent requests that the Minister's appeal be dismissed and that the positive decision of the RPD be confirmed. DETERMINATION [7] The RAD dismisses the appeal and confirms the decision of the RPD that the appellant is a Convention refugee, pursuant to section 111(1)(a) of IRPA. BACKGROUND [8] The respondent was born in Egypt on XXXX XXXX, 1999. He alleges that his parents moved the family to Saudi Arabia for work. He lived there with his family as a temporary resident for 7 to 8 years. After turning 18 the respondent lost his temporary status in Saudi Arabia. [9] The respondent is opposed to having to serve in the Egyptian military. He does not want to be forced to fire on Egyptian citizens and he rejects the military establishment for the insults that new recruits receive, the discrimination against certain classes of society, the religious people and differences in opinion. [10] The respondent has been open with his family and friends about not wanting to serve in the military. [11] The respondent has also posted satirical videos, pictures and GIFs ridiculing the army and Egyptian government on social media. He was the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which he believes was taken down by Egyptian government in 2016. He received threats as a result of some of his postings. [12] With the help of his older brother who was able to act as a guarantor, the respondent was able to apply for a passport before reaching the age of 18. He alleges that if he is to return to Egypt now, he would not be allowed to leave the country again until his military service was completed. [13] The respondent arrived at the Vancouver airport on September 18, 2017, and made his claim for refugee protection upon arrival. ADMISSIBILITY OF EVIDENCE [14] The appellant is not submitting new evidence and is relying on the documents filed as exhibits before the RPD as well as the other documents comprising the RPD and appellant's records. [15] The respondent seeks to enter new evidence: * Translation from the bio page of the respondent's passport.3 [16] This translation was provided within the Respondent's Record. While a copy of the respondent's passport was before the RPD, the translation was not. The translation is of a few lines from Arabic to English is dated April 8, 2018. [17] Pursuant to Rule 29(3) of the RAD Rules,4 this translation is accepted as new evidence on appeal. This evidence is presented by the respondent in direct response to the argument regarding the validity of the passport presented in the Appellant's Memorandum.5 I also find that pursuant to s. 110(4) of the IRPA, the person who is the subject of this appeal could not reasonably have been expected to have presented this translation at an earlier time. ROLE OF THE RAD [18] When reviewing the RPD decision, the RAD is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed and law and fact. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. [19] As this claim was decided without an oral hearing, the RAD is in the same position as the RPD in assessing credibility and deference is not owed. RPD's Reasons: [20] In its reasons, the RPD determined that the respondent is a Convention refugee in that he has a well-founded fear of persecution in Egypt on the ground of political opinion based on: * Being a conscientious objector to military service. * Having been critical of the army and government on social media. Appellant's Argument: [21] The appellant argues that the RPD made the following errors: * Concluding that the respondent is a genuine conscientious objector; * Finding that the punishment in Egyptian law amounts to persecution; * Finding that the respondent would be persecuted for being critical of the government on social media. Respondent's Argument: [22] The respondent argues that the RPD made no errors in its decision and reasons, and that it was correct in finding that he has a well-founded fear of persecution as a conscientious objector to military service and for publicly criticizing the Egyptian army and government. REASONS FOR DECISION [23] I have conducted an independent assessment of the evidence and arguments, and I do not find that the RPD erred in its decision. Is the respondent a genuine conscientious objector? [24] In the memorandum of argument, the appellant refers to case law which describes how mandatory military service does not amount, in itself, to persecution,6 and how there is no internationally recognized right to either total or partial conscientious objection.7 [25] The appellant argues that the respondent must demonstrate a sincerity in his convictions in order to be recognized as a conscientious objector, and there is no evidence to show that he refuses to take part in military action because of his genuine convictions grounded within his religious beliefs, philosophical tenets or ethical considerations. [26] The appellant also argues that the RPD erred by not further analyzing the basis for the respondent's objection to serve in the military. I do not agree. [27] The RPD considered all of the evidence and found it to be reliable and credible on a balance of probabilities. The Basis of Claim Form,8 and attached detailed narrative, was signed by the respondent declaring the contents to be complete, true and correct. This document is deemed true as sworn evidence and has not been contradicted by other evidence. I concur with the RPDs finding regarding the reliability of the respondent's statements and other evidence declaring that he is opposed to the mandatory military service requirement in Egypt. [28] The responded submits that if he is to return to Egypt, he would be subjected to immediate entry in the military and may also face charges in a military court for being a conscription dodger. [29] The appellant has argued that the respondent obtained some type of exemption from military service because he was issued an Egyptian passport valid until 2024, and permission is required from the military before a passport is issued to individuals between the ages of 16 and 30. [30] A copy of the respondent's passport was before the RPD.9 This document indicates that it was issued on XXXX XXXX XXXX/2017, and that it expires on XXXX XXXX XXXX/2024. What was not before the RPD, but is before the RAD having been admitted as new evidence, is the translation of a few lines on the passport in the Arabic language only. Most of the information on the biographical information page of the passport is presented in both Arabic and English. This translated information states that the respondent is only permitted to travel until XXXX XXXX XXXX/2018.10 In my independent assessment of the evidence, I do not find on a balance of probabilities that the respondent had an exemption from military service given the limited authorization that it allows for travel. [31] A notarized letter from the respondent's brother explains that he had acted as a guarantor in applying for the passport because his brother was underage and had very little time to be free to travel before being banned because of the military requirement. His brother also writes that if the respondent is to return to the country he will be considered as having fled military service and will be detained. His brother goes on to say that for a long time, the respondent has told his family and friends about his objection to having to serve in the military.11 [32] I find that the respondent's subjective fear regarding his objection to military service is supported by the objective documentation including the May 2017 Country Information Report for Egypt from the Australian Government's Department of Foreign Affairs and Trade (DFAT): Article 86 of the Constitution states that military service is compulsory according to the law. The Military and National Service Law 127/1980 regulates military service. All Egyptian males older than 18 are required to serve. Recruits face up to three years of mandatory service and a nominal monthly wage of EGP250. Conscripts may be placed in a branch of the military, in the police force or prison service. If a male over the age of 18 years seeks employment without having completed military service, he generally has to produce an exemption certificate from the Ministry of Defense to his employer. National identity cards indicate completion of military service, and eligible men who have not completed their service (or gained an exemption) are reportedly not permitted to travel abroad or emigrate.12 [33] There is more information contained in a Response to Information request which states that military service in Egypt is compulsory for males between the ages of 18 and 30 years old and the length of service is to a maximum of 36 months.13 [34] The objective evidence describes a prominent conscientious objector who refused to enlist and was detained five times for publicly campaigning against compulsory military service, and was imprisoned for two years for insulting the military. It also indicates that those seeking to avoid military service face a high likelihood of arrest and detention.14 [35] With respect to the appellant's argument that mandatory military service does not necessarily amount to persecution, I agree. The courts have held that conscientious objectors and army deserters are not automatically included in the Convention refugee definition, however, there are cases, such as this, where they are included in the definition and have established a well-founded fear of persecution for not wanting to participate in the current government's international human rights violations. [36] The respondent described his opposition to actions of the Egyptian military against its own citizens. In its decision, the RPD found that the respondent fell within the exception to the rule that refugee claimants generally cannot claim refugee status because they do not want to serve in their country's army. The RPD found that these cases concern selective objection to military service concerning particular conflicts or military operations for reasons of conscience or profound convictions. I agree with the RPD's finding. [37] There are several reports within the June 30, 2017 National Documentation package that address human rights violations, including reports of military force used against protestors15 which in certain circumstances may constitute violations of international law16. The RPD decision referred to evidence that it is military recruits who subject persons to torture in Egypt as well as evidence detailing various torture methods used against detainees. [38] There were numerous reports that the government or its agents committed arbitrary or unlawful killings while making arrests or holding persons in custody. There were reports that the government or its agents committed arbitrary or unlawful killings during disputes with civilians. There were a few reports of such killings while the government or its agents dispersed demonstrations. There were also reports of civilians killed during military operations in the Sinai. Impunity was a problem.17 [39] The authorities used mass arbitrary arrests to suppress demonstrations and dissent, detaining journalists, human rights defenders and protesters, and restricted the activities of human rights organizations. The National Security Agency (NSA) subjected hundreds of detainees to enforced disappearance; officers of the NSA and other security forces tortured and otherwise ill-treated detainees. Security forces used excessive lethal force during regular policing and incidents that may have amounted to extrajudicial executions. Mass unfair trials continued before civilian and military courts. The authorities failed to adequately investigate human rights violations and bring perpetrators to justice.18 [40] Members of the security forces continued to routinely torture detainees and forcibly disappeared hundreds of people with little or no accountability for violations of the law.19 Finding that the punishment in Egyptian law amounts to persecution [41] The appellant argues that the sentence the respondent would receive for his refusal to serve in the military is not persecutory and it was unreasonable for the RPD to conclude that the punishment would be disproportionately harsh or severe. I do not agree, and find that the RPD did not err in its decision. [42] The respondent fears being imprisoned for evading mandatory military service if he is to return to Egypt. This is corroborated by letters from the respondent's brother and his friend.20 It is also corroborated in the objective evidence which describes how those refusing military conscription face detention, including torture and possibly death. [43] There is objective evidence indicating that there are hundreds of persons in prisons for avoiding conscription.21 There is also objective evidence of harsh prison conditions in Egypt.22 [44] I agree with the RPDs finding that the respondent faces a serious possibility of persecution if he is to return to Egypt. Did the RPD err in finding that the respondent would be persecuted for being critical of the government on social media? [45] The appellant has argued that there was insufficient evidence before the RPD to conclude that the respondent would be targeted by the Egyptian government if he is to return for his social media postings. I do not agree. The respondent is a young man who has posted satirical videos, pictures and GIFs ridiculing the Egyptian government and military. I find that this behaviour is consistent with his stated objection to serving in the Egyptian military. [46] Among the evidence provided are translations of various Facebook posts made by the respondent, screenshots of satirical videos posted on his personal Facebook, and a series of posted photos depicting various failures of the Egyptian government.23 [47] The RPD found that the respondent had established a well-founded fear of persecution due to his online activities critical of the government. I concur with the RPDs findings. [48] The respondent submits that if one is found to publicly criticize the government, the person will always be harmed in one way or another. This is corroborated in the objective documentation in the NDP, including the DFAT Country Information Report for Egypt, which states that insulting the military or judiciary is a criminal offence; that definition of 'insult' is broad enough to include anyone who satirizes the military or brings it into disrepute; that civilians who come to the attention of authorities for attempting to protest are highly likely to face arrest and prosecution, particularly if they are perceived to have criticized the military or judiciary.24 State Protection and Internal Flight Alternative [49] I agree with the RPD's finding that there is no state protecion or internal flight alternative for the respondent because the State is the agent of persecution. CONCLUSION [50] Having considered all of the evidence and argument, the RAD dismisses the appeal and confirms the decision of the RPD that the appellant is a Convention refugee, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Paula Faber" Paula Faber December 3, 2018 Date 1 Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division: https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/polRpdSprExpProAcc.aspx September 18, 2015 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 RAD, Exhibit 4, Respondent Record, page 394-395. 4 Refugee Protection Division Rules (SOR/2012-256). 5 RAD, Exhibit 2, Minister's Record, p. 6-15. 6 Kirkoyan v. Canada (Citizenship and Immigration), 2011 FC 1217 (CanLII), para 18. 7 Hinzman v Canada (Minister of Citizenship and Immigration), 2006 FC 420, (CanLII), para 27. 8 RPD Record (RPDR), 15-32. 9 RPDR, p. 55. 10 Respondent Record, page 394. 11 RPDR, 259-261. 12 RPDR, Exhibit 3, National Documentation Package (NDP) for Egypt, June 30, 2017, Item 1.8. Egypt, 30 June 2017, tab 1.8: DFAT Country Information Report: Egypt. Australia. Department of Foreign Affairs and Trade. 19 May 2017. 13 NDP, item 8.1, Response to Information Request (RIR) EGY105396.E item 8.1: Whether a citizen of Egypt who is living abroad can obtain a student deferment from military service without a National Identity Card; whether an Egyptian citizen can apply for a National Identity Card from outside of Egypt. Immigration and Refugee Board of Canada. 8 January 2016. 14 NDP, item 8.1, Response to Information Request (RIR) EGY105396.E item 8.1: Whether a citizen of Egypt who is living abroad can obtain a student deferment from military service without a National Identity Card; whether an Egyptian citizen can apply for a National Identity Card from outside of Egypt. Immigration and Refugee Board of Canada. 8 January 2016. 15 NDP, item 2.9, Timeline of key human rights violations since the 2011 revolution. Middle East Eye. 13 February 2015. 16 NDP, item 8.2, Country Policy and Information Note. Egypt: Military service. Version 1.0. United Kingdom. Home Office. March 2017. 17 NDP, item 2.1: Egypt. Country Reports on Human Rights Practices for 2016. United States. Department of State. 3 March 2017. 18 NDP, item 2.2, Egypt. Amnesty International Annual Report 2016/17: The State of the World's Human Rights. Amnesty International. 2017. 19 NDP, item 2.3, Egypt. World Report 2017: Events of 2016. Human Rights Watch. 2017. 20 Respondent's Record, pages 219-225. 21 NDP, item 8.2, Country Policy and Information Note. Egypt: Military service. Version 1.0. United Kingdom. Home Office. March 2017. 22 NDP, item 2.1: Egypt. Country Reports on Human Rights Practices for 2016. United States. Department of State. 3 March 2017. 23 Respondent's Record, pages 322-357. 24 NDP, item 1.8: DFAT Country Information Report: Egypt. Australia. Department of Foreign Affairs and Trade. 19 May 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-01245 RAD.25.02 (September 18, 2018) Disponible en français 12 RAD.25.02 (September 18, 2018) Disponible en français