Sunteți pe pagina 1din 20
Ref No: USM 8455/17/9/127/568 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Determination of Appeal/Petition With a Hearing Appcton:Petoner; ars Representation: For the Appellant/Petitioner: For the Director of Immigration: @ Department of Justice ji) Immigration Officer, Immigration Department Date of hearing: rs Heard at: Hearing Room A, Rooms 3007-10, 30/F, Immigration Tower, Wanchai, Hong Kong. ground 1.1 The Appellant/Petitioner (“the Appellant”) is an Egyptian national aged 34, He departed Egypt on 27 June 2015 for Khartoum (Sudan) and stayed in Sudan for 9 months until he flew to Hong Kong 28 March 2016 (his Non- Refoulement Claim Form in Answer 35 §109 says “2015” but it should be 2016”), He arrived in Hong Kong two days later on 30 March 2016 as a visitor, and on the first day of his visa expiring he surrendered to the Director of Immigration (“the Director”) armed with a claim for non-refoulement protection on all available grounds, namely (1) risk of Torture under Articles 1 and 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (“Torture Risk”), (2) risk of harm under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance Cap.383 (“BOR3 Risk”) where the harm is often called Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”), (3) risk of loss of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance Cap.383 (“BOR2 Risk”), and (4) risk of Persecution (“Persecution Risk”) on the principles in Article 33 of the 1951 Convention relating to the Status of Refugees (“the RC”). The claim was dismissed on 31 August 2017 by the Director, hence he was liable to be repatriated unless he filed an appeal/petition (“the appeal”) to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). And he filed the appeal on 11 September 2017. The picture in perspective 1.2 Ananalysis of the alleged facts will appear later. But itis important at the outset to grasp a proper perspective of the Appellant's alleged situation and the proper issues because he has given a lengthy story with numerous facts many of which are legally irrelevant. 1.3.1 The Appellant says he has fear of being harmed or Killed by his own family, by Muslims in general, and by the Egyptian authorities because of 2 reasons, viz (1) he has converted from Islam to Christianity, and (2) he is a homosexual. The clear picture which emerges from the case is as follows: 1.3.2 He says he had been raped by “an old man” Yousef when a child, which had led to psychological depression later in life. 1.3.3 He claims to have been bullied when at school, but at the time he has never suffered serious ill-treatment or serious harm. 13.4 He claims “danger to his life” after he was converted from Islam to Christianity, but he nevertheless voluntarily asked for and obtained a Baptism Certificate which exposed his conversion, Furthermore, he has voluntarily held onto this alleged risk by keeping the Baptism Certificate with him all his life. This behaviour shows his assertion of risk to his life qua a Christian to be illogical (more on Christianity in Egypt later in this Decision). 1.3.5 He claims to have been raped by a chef in Khartoum in Sudan, but the dates and other details (e.g. location or locations) are vague. In any event, even if he had been raped while working in Khartoum, this does not advance his present claim because his home country is Egypt, not Sudan, and he will not be sent back to Sudan whether his claim succeeds or not. 1.3.6 He claims to have had a romantic relationship, not sexual, in around 2001 with a male mathematics teacher in secondary school. The date is hopelessly vague as not even the year is precise. The name of the teacher is not stated. No further detail about this “romantic relationship” has been given. And the teacher “has left the school”. The story is a hopelessly bare assertion about somebody who is “stealth”. 13.7 The medical report by Dr @ponly states a diagnosis of “chronic depression”, but no diagnosis nor even a mention of homosexuality. A trainee psychologist’s report mentioned depression and anxiety, but no diagnosis or mention of homosexuality. 14 Even if he is a homosexual and a converted Christian, the Country of Origin Information (“COI”) later in this Decision, including the reports by Mr and Mr @HMB presented by his Duty Lawyer as “New Evidence” one day before the oral hearing, do not support any substantial risk of serious ill-treatment or serious harm either to homosexuals or to converted Christians in Egypt, let alone to the Appellant himself. 1.5. The totality of the Appellant’s picture does not give rise to any substantial Torture Risk or BOR3 Risk or BOR2 Risk or Persecution Risk for the purpose of non-refoulement, 1.6 Because of the foregoing the appeal must be dismissed. But I will proceed, in any event, to deal with the alleged facts of the case, ‘The Appellant’s story 2.1 The Appellant says he was born in Saida Zainab (in Cairo), had lived in Nasr east of Cairo, and in Ain Shams in Cairo. He has a Bachelor’s degree in Commerce majoring in Accountancy. He has work experience as a teacher and as an accountant. He speaks of having been raped, when as a 5-yeat-old child, by old man Yousef, and this had given him psychological depression. He does not state, however, when it was that the rape occurred, nor where. He says he had attempted suicide when aged 16 because of depression. He says that when aged 16 or 17 he found his body to be “more feminine”. He says he liked creative work, dancing and music (NB: “Creative work, dancing and music” are not limited to, nor even predominantly in “feminine” people. I do not accept that these activities should be labelled as “feminine”. He speaks of a romantic relationship with a male teacher in secondary school who had a wife, but says the teacher had since left the school (presumably cannot be found). 2.2 He says he has consulted 3 psychiatrists who diagnosed depression. The most helpful doctor was Dr an a Christian psychiatrist (NB: Dr Qi being a Coptic Christian has obviously not been tortured or subjected to CIDTP or Persecution or been killed qua being a Christian). Dr prescribed anti- depressants and sleeping pills for him, but he stopped consulting the doctor after a year (by about 2010). 2.3. In “around 2009” he had told his parents and family that he was considering to become a Christian, but nobody accepted his suggestion, with his sister and father humiliating him, even locking him up in a room. He felt threatened and “one day in January 2010” he broke the bedroom door and fled to stay with Christian friends in Ain Shams in Cairo. His friends included Senior Pastor QM businessman QP and his Christian gay son > and GED from the QAMED Church (NB: These Coptic Christians, even the Christian homosexual had obviously not been killed qua their being Coptic Christians, nor is there any evidence of them having been tortured nor inflicted with CIDTP nor persecution). 2.4 He was baptised in March 2010 in the St Simon Al-Dabbagh Church, after which he obtained a Baptism Certificate (dated 3 June 2010) which he had taken with him wherever he went, e.g. Turkey, Lebanon, Georgia, Hong Kong. He says it was “too dangerous to keep the Baptism Certificate with him in Egypt”, obviously because he thought he would be tortured as a Coptic Christian (NB: But if that was true, it defied common sense that he had even wanted a Cettificate at all, or if he was given same without consent, why he had not destroyed it soon thereafter) 2.5 He says he had wanted to commit suicide again when aged 28 by cutting his wrist, but soon gave up the idea. In 2011 he first travelled to Turkey, and after returning to Egypt he went to Lebanon (on 5 June 2012), returning to Egypt 9 days later (on 14 June 2012), then went to Georgia on 12 January 2013, returning to Egypt on 18 March 2013. 2.6 For well over 2 years back in Egypt he had encountered nothing hostile even though he was a converted Coptic Christian, nor as a homosexual as asserted, He flew to Sudan (Khartoum) on 27 June 2015. He lived with and worked for a father and son as an accountant. He says that in the same house was an Egyptian chef who had raped him (NB: He has not stated any date, nor the location where this had allegedly happened, nor is there any medical report or evidence to support the occurrence of the event). He does not say that because he was homosexual he had found the act of the Chef enjoyable. 2.7 He left Sudan 9 months after his arrival, and on 29 March 2016 he flew from Khartoum to Hong Kong, arriving the following day. The rest of his movements were as stated in paragraph 1.1 above. The Appellant's New Evidence" in addition to the Hearing Bundle 2.8 The Appellant via his Duty Lawyer, on 1 June 2018 and 10 July 2018, produced 2 lots of “New Evidence”. The first lot consisted of criticisms of the Director for not believing his (the Appellant’s) Christian faith and practice, including a Baptism Certificate from the Coptic Orthodox Church, showing that he was baptised on 3 March 2010, the current correct website of the > Church, and in essence 6 pages saying how and why the Director was wrong. But the TCAB is not charged with the duty to state whether the Director has been correct or wrong. Criticisms against the Director are completely irrelevant to appeals to the TCAB and should not have been submitted: see Addendum at the end of this Decision. 2.9 In the second lot of “New Evidence” the Duty Lawyer submitted 2 reports, one by Mr (dated 9 July 2018) a journalist familiar with the Arab world, a (Gated 6 July 2018). 2.10 Mr QIN wrote about Arab families putting pressure on the younger generations to be married, and this he said was consistent with what the Appellant has said, He wrote about general unacceptance of homosexuals, of family beatings, ostracisation by society, that there is in existence a Dr Qa who the Appellant says he had consulted, that it is credible that the Appellant had converted to Christianity, that he found the Baptism Certificate to be genuine, about the history of Christianity in Egypt, freedoms under Article 53 of the Constitution, Sharia law, discrimination within institutions, discrimination and violence against Christians being condemned by the Government although not agreed by everyone to be always effective, whether there are punishments (and if so what) against apostasy varying among scholars, mere renouncing Islam is not sufficient to lead to the death penalty but needs to be “working against the interests of a Muslim society or nation”, he agrees that the Appellant has not publicised his conversion, Egypt has no statutory law against leaving Islam although there are laws against blasphemy, in his view if the Appellant was attacked by the family the state would not provide protection, every Egyptian citizen aged 16 and above must have an ID card which bears the religion of the person, to effect the recording of a change of religion on the ID card would be a long and difficult road on which to embark (thereby explaining why the Appellant's ID card still records him as a Muslim), from the Appellant’s name on the ID card the authorities will accept that a change in name had been effected but not a change of religion ie. the Appellant continues to be regarded as a Muslim, there is no specific law in Egypt against homosexuality, the Supreme Council for Media Regulation banned the promotion or dissemination of gay slogans, the Coptic Orthodox Church regards homosexuality as a dishonour and sinful, that when the Appellant lives in Egypt neighbours will wonder why he is still not married at his age, and Mr conclusions are that he believes the Appellant is a homosexual and a Christian (but he admits he has not interviewed the Appellant). 2.11 As to Mr QHMNMMMNNMB he produced a note saying that 86% of Egyptians are supportive of the death penalty for converts away from Islam although the Government does not criminalise such conversions, Egyptian Penal Code Article 98(9 provides for imprisonment between 6 months and 5 years or a fine of at least 500 Egyptian pounds for blasphemy amounting to sedition or prejudicing national unity, he gave examples of experience from 6 converts but there were no serious consequences (for example one was only told by the authorities “to disappear”, another was interrogated for a few nights then released, while another two were not even arrested), 94% of Egyptians regard homosexuality as morally wrong, there were arrests made at a gay concert in Cairo on 22 September 2017 displaying a “rainbow flag” leading to varying terms of imprisonment between 6 months and 6 years, and he believes the Appellant will face imprisonment, torture and other forms of ill-treatment because of being a homosexual and a religious convert to Christianity. 2.12. Itis obvious that what Mr QIBand Mr QW) have written do not detract from or erode into the issues addressed in paragraphs 1.3.1 to 1.5 above. In fact much of what the two gentlemen have written strengthen what are in those paragraphs, for example the lack of severe consequences for a mere converter away from Islam. There is no medical evidence, only speculated views, that the Appellant is a homosexual and, even if he is one, that people will know, and even if they know and there may be discrimination, there is no severe ill-treatment or serious harm as a substantial risk for the purpose of non- refoulement law. 2.13. Then just before the oral hearing commenced, Duty Lawyer produced a report by 2 Ms QM psychology counsellor (not a medical practitioner), dated 10 July 2018. She wrote that the Appellant was suffering from Post-Traumatic Stress Disorder (“PTSD”) and needs evaluation by a psychiatrist, but that if the Appellant were to be retuned to Egypt, his mental health would risk deterioration with increased risk of committing suicide, and that he is “not fit to be detained”. I do not consider her to be a qualified person to give the last comment. In any event, there is one theme which runs throughout the whole report: she has found the Appellant to be suffering from PTSD as a result of abuse when he was 5 years old (ie. by the “old man Yousef”), from paranoia and from interpersonal sensitivity. But she does not mention that he is'a homosexual. 2.14 The Appellant's reference to a report by Mr QM goes nothing significantly further than Mr QIN report above. The hearing, and consideration of the alleged facts A hearing was held where the Appellant answered questions. Unreliability 4.1. As has been discussed, the Appellant’s story contains only vague facts about his alleged homosexuality for proper evidential weight to be attached. 4.2 He speaks of rape by Yousef, but has stated no dates, not even approximately when, and he says it happened in “about 1989 or 1990” so that even what year is woefully uncertain. But even if this had been true, Yousef who was then already “an old man” cannot still be a substantial threat of rape after 29 years in 2018 today — and that is if the then “old man” Yousef is still alive today, 4.3 He speaks of a “romantic relationship” with a teacher, but has not stated his name, nor the name of which school, nor the date when this happened, not even which month and which year, and now “he has left school” hence has become a “phantom person” as well. 4.4 He says he fears torture and/or CIDTP and/or persecution as a result of being a Christian, yet he cartied a Baptism Certificate with him wherever he went, which defies common sense if he was truly harbouring “a grave fear for his life”. 4.5 He says Coptic Christians and homosexuals were persecuted, yet there ‘were churches and overt Christian pastors and church-goers in Cairo. There was even a Christian homosexual QQ and they are all alive and well. 4.6 ~ He says he was raped by a chef when in Khartoum. But he has not stated any date or dates, nor the name of the chef, nor any description of him, nor did he report the crime to the police, and so there is no police document, nor is there any medical or any other evidence to support that the asserted event had actually occurred. But even if the story was true, it can only show that the chef was a homosexual, not the Appellant, otherwise the Appellant would (in the absence of evidencre otherwise), on balance, have willingly consented to the act. 4.7 Why the Appellant left Egypt, why he chose Hong Kong, why the ‘obvious and cheaper method to avoid his allegedly hostile sister and father was to simply move elsewhere in Egypt (more on this under COI “The Largest Cities in Egypt” below), yet he would fly 12,000 km from Sudan and subsequently to such a far-away place as Hong Kong, the answers to all these matters he himself would of course know, but as the burden of proof is on a claimant, he who is unreliable fails to establish his claim. Cone jon 5. 1 place no credence in the Appellant’s vaguely asserted story. There is nothing reliable to support any substantial risk of serious ill-treatment whether under the principles of Torture or BOR3 or BOR? or Persecution. The appeal is dismissed, and the decision of the Immigration Officer, dated 31 August 2017, is hereby confirmed. The law on the relevant risks and application to this case 6. For the sake of completeness, however, I will turn to the 4 areas of the relevant law as applied to the Appellant's alleged set of facts. Torture Risk The law 7. A claimant must establish that repatriation would breach Article 3 of CAT in that there are substantial grounds showing danger of being tortured back home. “Torture” is defined Article | of CAT comprising what I call “ihe 4 legal Elements which must all be established, viz “any act by which (1) severe pain or suffering whether physical or mental, (2) is intentionally inflicted on a person, () for such purposes as obtaining from him or a third person information ot confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, and (4) such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 8. _A claimant has the burden of proof to establish all the above legal elements. It is not sufficient if the “evidence” consists of bare assertions, as he has a duty to gather information regarding the claim as much as the host country, and not “to simply sit back and require the Director to disprove it”: TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, Judgment at peragraph 25. He must establish substantial grounds showing @ foreseeable, real, and personal risk. General statements about a country do not advance a claim unless there is personal encounter: Gallolu Kankanamalage imal Perera v Director of immigration Petition Team CACV 215/2012. Legal “Element 4”: the" State agent” 9. There is no evidence of any hostile act as having been instigated or authorised by, or acquiesced in by, the national Government. The Appellant's sister and father are not State agents acting for or on behalf of the Government. None of the alleged hostility had been reported to the police, There is no evidence of “official acquiescence”. Nor is there any evidence of “passive acquiescence”: MI CACV 69/2014, FAR HCAL 76/2015 §36 to 38. 10. The Appellant has never been arrested, detained or imprisoned in Egypt, nor had any of his family members or close friends (Non-Refoulment Claim Form at QA.44 and 45). He departed Egypt several times, and re-entered Egypt several times, all via proper immigration channels without allegation of any problem from the Government. I realise that these features are not decisive, but they at least do not suggest that he was targeted for torture by the Government. 11. The stated facts do not show harm or threat of harm as instigated by anyone qua the capacity of the national Government, nor was there harm or threat of harm done ot uttered under the colour of state authority. “Element 4” is absent, and there no substantial risk of it existing in future. This aspect alone dismisses the appeal under “Torture Risk” even on the Appellant's alleged facts. Legal “Element 1”: “Severe pain and suffering” 12. The Appellant speaks of injuries in the dim dark past, but had not required any major medical treatment. He has suffered from depression, but was able to cope with daily life and travelled to and from Turkey, Lebanon, Georgia, ‘Sudan and Hong Kong. As the well-known authorities in this subject Nowak and McArthur say in their book “The United Nations Convention Against Torture: A Commentary” (Oxford University Press) at §183: “Torture presupposes a situation of powerlessness, which usually means a deprivation of personal liberty”, not to one who roams around carrying on his daily business. 13, There is no evidence of the Appellant having suffered, or facing any significant future risk of “severe pain and physical or mental suffering reaching the minimum level of severity on the duration of the treatment, its physical ot mental effects”: Huri-Laws y Nigeria African Commission of Human and Peoples” Rights, CAT 25/1998 at §41. 14, Further and in any event, assaults do not constitute “Torture” unless inflicted by someone acting in the official capacity of the nation: MP.S. ¥ Australia CAT 138/199. When the Appellant was assaulted (or if assault should happen in future), no assailant was, or will be, acting for or on behalf of the Government 15, The stated facts do not show physical or mental pain or suffering which satisfies “Element 1”. | realise that the lack of “Element 1” in the past does not ‘mean no torture in future, but the evidence does not establish substantial ‘grounds showing a foreseeable and real risk, 16, Accordingly, the appeal also fails under “Torture Risk” due to another independent reason of those stated earlier even on the Appellant's alleged facts. Internal relocation 17. Ifa claimant can avoid Torture and/or CIDTP and/or Persecution by living in one or more places other than where he says he would be subjected to Such treatment, he will not succeed in applying for non-refoulement: Balvir Kaur India CG [2002] UKIAT 03387, and A (Uganda) [2008] EWCA Civ 579. 1, jute the Immigration Officer's Notice of Decision in the part entitled (How likely itis that your feared treatment would materialize” where he hes Gxplained in detail why the Appellant is safe in Eaypt. At the oral hearing the Appellant claimed that “his name would be on the ‘Stop List’ so that if he Lande back in Egypt he will be arrested”, saying that this is because hie family “would have” reported to the authorities that he is missing. On being asked by Government Counsel on this issue, however, he said he had not seen any Stop List. In other words his claim is sheer guesswork. Country of Origin Information (“COI”) Be. ine following COI was given to the Duty Lawyer and Government Counsel for comment (if any) in their final submissions to be sent to the Teas several weeks after the oral hearing had completed. A summary of the relevant COT is as follows: Christianity in Egypt (Wikipedia: accessed 19 June 2018) ‘tps:tien.wikipedia.or g/wiki/Christianity in Egypt Boutros Boutros-Ghali is a Copt who served as Egypt's foreign minister under President Anwar Sadat. Today, only two Copts are on Fgypt's govemmenta cabinet: Finance Minister Youssef Boutros Ghali and Environment Minieter Magued George. There is also currently one Coptic governor out of 25, that of the upper Egyptian governorate of Qena, and the fitst Coptic governor fa 2 fem decades. In addition, Naguib Sawiris, an extremely successful businessman and gre of the world's 100 wealthiest people, is a Copt. In 2002, under the Mubarak goverment, Coptic Christmas (lanuary 7) was recognized as an official holiday. However, many Copts continue to complain of being minimally represented in law enforcement, state security and public office, and of being discriminated against in the workforce on the basis of their religion, Most Copts do not support independence ot separation movement from other Egyptians. While freedom of religion is guaranteed by the Egyptian constitution, according fo Human Rights Watch, "Egyptians are able to convert to Islam generally without difficulty, but Muslims who convert to Christianity face difficulties in Setting new identity papers'and some have been arrested for allegedly forging such documents." The Coptie community, however, takes pains fo, prevent cetversions from Christianity to Islam due to the ease with which Christians comvetfen become Muslim. Public officials, being conservative themselves, jntensify the complexity of the legal procedures required to recognize the religion change as required by law. Security agencies will sometimes claim that ree Coaversions from Islam to Christianity (or occasionally viee versa) may see eval unrest, and thereby justify themselves in wrongfully detaining the subjects, insisting that they are simply taking steps to prevent likely social sete. from happening. In 2007, a Cairo administrative court denied 45 CRizene the tight to obtain identity papers documenting their reversion to Christianity after converting to Islam: However, in February 2008 the Supreme Ndmninistrative Court overturned the decision, allowing 12 citizens who hhad reverted to Christianity to te-list their religion on identity cards, but they will specify that they had adopted Islam for a brief period of time. The Egyptian Censie of 1897 reported the percentage of Non-Muslims in Urban Provinces a 14.7% (13.2% Christians, 1.4% Jews). The Egyptian Census of 1986 reported the percentage of Non-Muslims in Urban Provinces as 6.1% (5.7% Christians, 0% Tews), The decline in the Jewish representation is interpreted through the crerdon of the state of Israel, and the subsequent emigration of the Egyptian Jerse “There is no explanation for a 55% decline in the percentage of Christians in Egypt. It has been suggested that Egyptian censuses held after 1952 have been politicized to under-represent the Christian population in August 2013, following the 3 July 2013 Coup and clashes, belwees the military and Morsi supporters, there were widespread attacks of Coptic churches and institutions in Egypt by Sunni “Muslims.” "| According to at Tecet one Buyptian scholar (Samuel Tadros), the attacks ate the worst violence against the Coptic Church since the 14th century. USA Today seported that “forty churches have been looted and torched, while 23 others have been werred. and heavily damaged". The Facebook page of the Muslim Brotherhood's Freedom and Justice Party was "rife with false accusations meant a foment hatred against Copts", according to journalist Kirsten Powers. The Party's page claimed that the Coptic Church had declared "war against Islam aa telimns’ and that "The Pope of the Church is involved in the removal of are at elected Islamist president. The Pope of the Chorch alleges tslamic oe ia is backwards, stubborn, and reactionary.” On August 15, nine Egyptian human rights groups under the umbrella group "Egyptian Initiative for Personal Rights", released a statement saying, In December Brotherhood leaders began fomenting anti-Christian sectarian incitement. The anti-Coptic incitement orerihreats continued unabated up to the demonstrations of June 30 and, with ihe removal of President Morsi .., morphed into sectarian violence, which was we Mroned by .., the continued anti-Coptic shetoric heard from the group's leaders on the stage .., throughout the sit-in, On February 25, 2016 an Egyptian court convicted four Coptic Christian teenagers for contempt of Islam, after they appeared in a video mocking Muslim prayers. The 2017 Palm Sunday church bombings killed over 40 people. Copts (Wikipedia: accessed 19 June 2018) https:/len.wikipedia.org/wiki/Copis The publication says, infer alia, that Copts in Egypt constitute the largest Christian community in the Middle East, as well as the largest ethno- religious minority in the region, accounting for an estimated 10 % of the Egyptian population. Copts in Sudanconstitute the largest Christian community in Sudan, accounting for an estimated 1% of the Sudanese population. Copts in Libya constitute the largest Christian community in Libya, accounting for an estimated 1% of the Libyan population, Most Copts adhere to the Coptic Orthodox Church of Alexandria. The Coptic Catholic Church, which is an Easter Catholic church in full communion with the Catholic Church, claims 163,000 members. The Copts in modern Egypt (J-D.Pennington: accessed 19 June 2018) https://www jstor.org/stable/4282879? seq=14page_scan_tab_contents Under Muslim rule, Christians were second-class citizens, who paid special taxes, had little access to political power, but were exempt from military service. The Copts were cut off from the mainstream of Christianity, but they were allowed to practice their religion unmolested. Their position improved dramatically under the rule of Muhammad Ali in the early 19th century. He abolished the Jizya (a tax on non-Muslims) and allowed Egyptians (Copts) to enroll in the army. Pope Cyril IV, 1854-61, reformed the church and encouraged broader Coptic participation in Egyptian affairs. Khedive Isma'il Pasha, in power 1863-79, further promoted the Copts. He appointed them judges to Egyptian courts and awarded them political rights and representation in government. They flourished in business affairs. Some Copts participated in the Egyptian national movement for independence and occupied many influential positions. Two significant cultural achievements include the founding of the Coptic Museum in 1910 and the Higher Institute of Coptic Studies in 1954, Some prominent Coptic thinkers from this period are Salama Moussa, Louis Awad and Secretary General of the Wafd Party Makram Ebeid. In 1952, Gamal Abdel Nasser led some army officers in a coup d'état against King Farouk, which overthrew the Kingdom of Egypt and established a republic. Nasser's mainstream policy was pan-Arab nationalism and socialism. The Copts were severely affected by Nasser’s nationalization policies, though they represented about 10 to 20% of the population. In addition, Nasser’s pan- Arab policies undermined the Copts' strong attachment to and sense of identity about their Egyptian pre-Arab, and certainly non-Arab identity which resulted in permits to construct churches to be delayed and Christian religious courts to be closed. Egypt: At least 28 dead as gunmen fire on bus carrying Coptic Christians (CNN news: May 26, 2017) http://edition.enn.com/2017/05/26/africalegypt-shooting-coptic- christians/index. htm! ‘At least 28 people were killed in Egypt after unidentified gunmen opened fire ‘ona bus carrying Coptic Christians in what officials are calling a terror attack. Ten assailants Wearing fatigues and face masks fired on the passengers from three four-wheel drive vehicles on a desolate stretch of desert road, Egypt's Interior Ministry told CNN. Hours later, Egypt responded with airstrikes against terrorist camps, President Abdel Fattah al-Sisi said in an on-camera statement, according to state-run Nile TV. The Christians were traveling Friday to a monastery, St. Samuel the Confessor, around 100 km (62 miles) northwest of the city of Minya when they came under fire, the ministry said... It was not immediately clear who was responsible for the shooting, but Coptic Christians have been targeted by ISIS militants several times in recent years and ongoing, violence has triggered a mass exodus of Coptic Christians from some towns. Egypt (OpenDoors USA: accessed 13 July 2017) hups:/hvww.opendoorsusa.org/christian-persecution’world-watch-list/egypl ‘The article says that President al-Sisi’s authoritarian style of government has to some extent restored the rule of law in Egypt, but also implies a stricter compliance with the relatively restrictive legislation related to religious affairs. This is not in the advantage of the country’s Christian population. The large Coptic minority, while facing important difficulties, has been tolerated because of its historical presence and its demographic size. In recent years this has changed, however, causing historical Christian communities to be targeted as well. There is a simall but growing community of Christian converts (Muslim Background Believers, MBBs), who bear the brunt of persecution, most often from family members, Believers are often kicked out of their homes when their ‘Muslim families find out about their faith. In cooperation with local churches and other partnering ministries, Open Doors is supporting the church in Egypt through the following activities: Family ministry, Youth ministry, General education, Literacy training, Advocacy, Medical outreach, Widows ministry and ‘Women empowerment ministry (The above publications show that while there is no perfect peace for Christians living in Egypt (e.g, the terrorist bus attack), there is obviously no “universal persecution” of all Christians otherwise there cannot be a modern Christian population as big as 10% in Egypt. General country information may be helpful to refugee applications, but non-refoulement claims have different egal considerations, as the law referred to earlier in this Decision shows). The World Factbook: Egypt (US Central Intelligence Agency: accessed 19 June 2018) hitps:/hwww.cia.gov/library/publications/the-world-factbook/geos/eg, html Egypt — Largest cities (Geonames: accessed 19 June 2018) http://www geonames.org/EGNargest-cities-in-egypt. html The population of Egypt and its bigger cities are: Egypt over 97M, Cairo over 7.7M, Alexandria over 3.8M, Giza 2.4M, Port Said over 0.5M, Al-Mahallah al-Kubra, Luxor, Assiut, Al Mansurah, Tanta: all over 0.4M. 20. At the oral hearing I asked the Appellant about relocation to the bigger cities and about the “needle in a haystack” thesis, and he said the risk of his father locating him “is high”. I do not accept that his father, living in Cairo, would be able or willing to hunt down the Appellant anywhere in the big country of Egypt. I do not accept his bare assertion of “high risk”. 21. Ido not accept that the Appellant's family members are interested in locating him all over Egypt, and that is even if they should have huge resources and manpower, as well as are willing to expend same to look for a needle in a haystack. I find no substantial risk or any substantial basis of fear. There are many places in Egypt where as a 34-year-old, able-bodied and highly educated young man with professional work experience, he can safely live without undue hardship, which is another independent reason for the appeal to fail even on the Appellant's alleged facts, 22. For the above reasons the claim under “Torture Risk” fails even on the Appellant's alleged facts. the equivalent of Article 7 of the International Covenant on Civil and Political Rights, viz “No one shall be subjected to torture or to cruel, 1s inhuman or degrading treatment or punishment”: Soering v UK (1989) BHRR 439 at §91, Ireland v UK 5310/71 ECHR (Series A) 25, 5310/71 [1978] ECHR I, and Kalashnikov v Russia (2003) 36 EHRR 34. 24, The requirements for non-refoulement under BOR3 are: (1) severe ill treatment if refouled, viz. “serious harm”, (2) substantial grounds for believing, that the claimant will suffer from such harm, and (3) absence of State protection. The threshold for “serious harm” is very high, involving actual bodily injury or intense physical or mental suffering: Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359, ireland v United Kingdom (supra). 25. C& Ors v the Director of Immigration and Another (2013) 16 HKCFAR 280, FACV 18, 19 and 20 / 2011 speaks of “a well-founded claim” (judgment at §56), which is similar to the terminology used in the cases on the RC which speak about “a well-founded fear”, and this takes the criteria for determining CIDTP to be virtually the same as for the RC, except that for the RC the harm must also be under one or more of the “Convention Categories” (sce below), Facts of today’s case assessed under BOR3 26. Other than alleged rape by the old man 29 years ago, where the risks do not exist any longer as explained earlier in this Decision, the Appellant has not suffered any severe injury or serious harm in Egypt which would place him within the criteria of CIDTP. And for reasons stated I find no substantial ground to believe he will face any future risk of serious harm. The situation falls far short of establishing CIDTP, hence the appeal fails under “BOR3 Risk” even on the Appellant's alleged facts. 27. Further and in any event, he is safe to live in Egypt, at least other than in his home locality, which is another independent reason for a claim under “BOR3 Risk” to fail even on the Appellant's alleged facts. BOR? Risk 28. The issues in “BOR2 Risk” are spelt out in the statute. For the reasons stated above, I find no substantial risk to the Appellant's life, and the claim under “BOR? Risk” fails even on the Appellant's alleged facts. 16 29. Article 33 of the RC says there would be a persecution risk to a person if. (a) owing to well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, the claimant is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country: Article 1A(2) of the RC, and (b) his life or freedom would be threatened on account of one or more of the “Convention Categories” i.e. his race, religion, nationality, membership of a particular social group or political opinion, should he be expelled or returned to the frontiers of a Risk State. 30. There is no statutory definition of “persecution”, but there must be “a minimum level of severity”, serious violation of human rights, or serious or intolerable harm. As to perpetrators, the RC uses the term “agents of persecution” which are normally State authorities. The United Nations uses the term “populace” which means a sizeable portion of the population: UNHCR Handbook (1979) Chapter II at §65, HLR v France [1998] 26 EHRR 29, & v SSHD ex parte Bagdanavicius [2005] UKHL 38. 31. _Putanother way, the requirements for non-refoulement under Persecution are virtually the same as under BOR3, namely there must be: (1) severe ill- treatment if refouled, viz “serious harm”, (2) “well-founded fear” of such harm, namely there must be a real chance of such harm occurring and not merely remote or speculative: CHAN v MIEA 169 CLR 379 at 430, MIEA v Wu Shan Liang 185 CLR 259, and (3) the absence of State protection, but (4) the harm must also be under one or more of the “Convention Categories”. Facts of today's case assessed under Persecution 32. In order to avoid misunderstanding it should be emphasised that the test under Persecution is not the same as under BOR3 Risk although some of the wordings may sound similar. Other than alleged rape by the then old man now 29 years ago, where the risks do not exist any longer as explained earlier in this Decision (the alleged rape in Sudan is irrelevant to refoulement to Egypt), the Appellant has not suffered any serious ill-treatment or severe injury or serious harm in Egypt which would place him within the criteria of Persecution, In any event, for reasons stated I find no substantial ground to believe he will face any future risk of serious harm, In addition, the Appellant’s family members do not 7 come within the meaning of “populace” in refugee law. The situation falls far short of establishing “Persecution Risk” even on the Appellant's alleged facts. 33. Further and in any event, he is safe to live in Egypt, at least other than in his original locality, which is another independent reason for a claim under “Persecution Risk” to fail even on the Appellant's alleged facts. Conclusions (including taking into account the Appellant's alleged facts) 34. A summary of the Appellant's whole case is as follows: (1) He claims risk of Torture, CIDTP (BOR3), BOR2, and Persecution (Collectively referred to as “harm”) because he is a homosexual and a converted Coptic Christian. I accept he is a Coptic Christian converted from Islam. But as ventilated earlier, there is no substantial risk of harm whether from Egyptian statutory law or from the public. His friend > the pastors of QIN, 2nd Dr QE who is also a pastor at the GEEED Church (in fact he says Dr QUREBis also a homosexual) are clear examples. As to his father who is the only one who has beaten him, he is in Cairo, and relocating elsewhere will avoid him from harm: his lack of encountering his father while living in Alexandria is a clear illustration, He says he was verbally abused while in Alexandria, but verbal abuse is not “serious harm” required to sustain a claim for non- refoulement, (2) He claims risk of harm because he is homosexual. For the following reasons I do not find that he has discharged his burden of proof, albeit a low one, that he is a homosexual: (a) he may have claimed about homosexuality, but in none of the 3 expert reports, i.e, from Dr QB from a trainee psychologist, and now from Ms @HEEINB psychologist-counsellor, has stated the diagnosis of homosexuality. Duty Lawyer says this is because “homosexuality is not a disease”, which may be so, but the fact that it has not even been mentioned to be in the Appellant in any report speaks against the claim. (b) I have had the actual advantage of observing, and closely so, the Appellant throughout the oral hearing, and while I am not an expert on the subject, I am entitled as a lay person to gain an impression. It is trite law to state that a lay person may not be accepted to say “Mr X is ill”, but he is permitted to say “Mr X appears to me to be ill”. And my 18 @B) observations are as follows: (1) the Appellant has no external bodily appearance of a woman as he claims he has, (2) he is a tall, very stout man with well-built arms and physique, (3) he wears a thick moustache, (4) he wears a thick beard, (5) he wore no feminine garments e.g. no floral patterns but a plain dark purple T-shirt and pants, and no high heels, (6) he wears no makeup of any kind, (7) he spoke with a strong masculine tone and manner of speech, and (8) he walked into the hearing room in the same manner and gait as any man. Independent support of my observations is found in the expert psychologist’s report of Ms at §24. (© He may have been raped by Yousef and the Sudanese chef, but such sexual acts are not referred to by the Appellant as consensual. His use of the term “tape” proves non-consensuality. In other words, while his assailants may have been homosexuals, he himself was not, and there is no suggestion, even faintly, that he had consented to those acts. (4) He speaks of “a romantic relationship” with a male teacher at secondary school, but what that means he does not elaborate. But worse still, the teacher had a wife and children, and furthermore at the oral hearing the Appellant stated that he did not have any sex with the teacher. At the oral hearing he claimed to have had “sexual relationships”. He did not elaborate what they meant, When asked about this by Government Counsel he replied “I do not want to answer”. Hence the claim is nothing but a bare claim. (4) But even if he is a homosexual, on his own version he has not publicised the fact, and from the evidence seen earlier in this Decision, in any event there is no substantial risk of harm whether as a matter of law or from the general public. Gay people had only been arrested because they “had made a thing” out of homosexuality by displaying the rainbow flag in a public concert. But even then the arrestees had not been inflicted with torture or CIDTP or any serious ill-treatment or serious harm, so that those arrestees do not enable this Appellant to say that he faces any substantial risk of serious ill-treatment or serious harm. (5) Furthermore, on his own account, homosexuals (including homosexual Christians) are alive and well: Qigpand Dr Mare clear examples. 35. Put another way, the fact that he is a Coptic Christian and even if he is a homosexual, he has not established any substantial risk of serious harm in Egypt, at least if he stays away from Cairo where his father is resident. 36. For numerous and independent reasons, even on the Appellant's own alleged facts, he fails to establish a case of non-refoulement whether under the principles of Torture or BOR3 or BOR2 or Persecution. The appeal is dismissed, and the decision of the Immigration Officer, deted QIN is hereby vt confirmed. hemmeamirsurec orture Claims Appeal Board/ Adjudicator of the lement Claims Petition Office Addendum 37. Duty Lawyer for the Appellant has written 12.5 pages consisting of 21 paragraphs of “Grounds of Appeal” which only boosted the thickness of the documents, but they were a complete waste of resources. Furthermore, paragraphs 1 to 4 were a mere repeat of the materials already available and which were in any event not “Grounds of Appeal” although placed under such a heading. She was either not aware of, ot had turned a blind eye to, the fact that the TCAB has the duty to examine the case from afresh, and whether the Director has or has not made any finding correctly or wrongly, is irrelevant. For ‘what other reason such wasteful effort in boosting the number of documents I do not speculate, but this meaningless waste of resources and waste of finance should be discouraged from happening again in future, 0