Date: 20050317
Docket: IMM-1968-04
Citation: 2005 FC 380
Ottawa, Ontario, this 17th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MAGID SEFEEN (a.k.a. Magid Lamie Ger Sefeen)
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Magid Sefeen, a citizen of Egypt, claims protection as a Convention refugee or as someone who is at risk if returned to Egypt, on the grounds of his religion, that of a Coptic Christian. The experiences that led to his claim arose both generally as a Coptic Christian youth and, specifically, as a result of an incident in June 1992 while he was in University. He left Egypt in September 1994 for the United States, where he made an unsuccessful claim for refugee status that was finally determined in 1999. In 1997, the Applicant tried, unsuccessfully, to immigrate to Canada. He arrived in Canada from the United States and made an application for refugee status here on May 12, 2003. In a decision dated January 28, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division) ("the Board") determined that the Applicant was neither a Convention refugee nor a person in need of protection. The Applicant seeks judicial review of that decision.
ISSUES
[2] The Applicant raises two issues arising from these findings:
1) Whether the Board erred in its determination that, as a Coptic Christian, the Applicant would only be subject to discrimination and not persecution based on its assessment of country conditions in Egypt; and
2) Whether the Board misunderstood the evidence relative to the grounds upon which it determined the Applicant's credibility.
BOARD'S DECISION
[3] The basis of the Board's decision can be summarized as follows:
_ The documentary evidence regarding country conditions indicated that Christians in Egypt experience discrimination and not persecution.
_ The Board found that the Applicant's testimony was "inconsistent, implausible and contradictory" and did not believe that the key event in 1992 ever took place. The Board cited a number of points upon which it had concern with the testimony of the Applicant.
_ In his Personal Information Form ("PIF"), the Applicant failed to identify the activities in his church that allegedly gave him the profile of someone who would attract the attention of the agents of persecution.
_ In his PIF, the Applicant failed to mention that the agents of persecution were the Gemaat Islamiya.
_ In his refugee claim in the United States, he told a different version of the incident that led to his leaving Egypt.
_ The Applicant never saw the flyers that declared a jihad or fatwah against him; rather he relied on what he "had been told by a friend who was told by another friend".
_ After the incident in 1992, "despite the claimant's allegation that the fundamentalist, Gematt Islamiya, had a countrywide network that would hunt him down throughout the country, the claimant spent three uneventful years in Cairo".
_ The Applicant's explanation that he was hiding while in Cairo was not accepted by the Board since, during that time; (a) he attended university; (b) he renewed his passport and applied for a visa.
_ The Applicant was not able to explain satisfactorily why other Christian students at the University in Aswan (about 20%) were not targeted by the Gematt Islamiya.
_ The Board drew a negative inference from the Applicant's delay in coming to Canada after his claim in the United States was denied.
ANALYSIS
Standard of Review
[4] Findings by the Board on matters of credibility and weight of evidence are determinations that should not be interfered with by this Court unless they are patently unreasonable or are made without regard to the evidence (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 160 N.R. 315 (F.C.A.).
[5] With this standard in mind, I turn to the issues in this case.
Issue #1: Did the Board err in its conclusion that Christians in Egypt experience discrimination and not persecution?
[6] The Applicant submits that the Board failed to assess whether the discrimination faced by
Coptic Christians in Egypt amounted to persecution. The Applicant draws my attention to various provisions of the United Nations High Commissioner for Refugees "Handbook on Procedures and Criteria for Determining Refugee Status" (the "UNHCR Handbook") which provides guidance on how the Board should approach a claim that discrimination amounts to persecution. In particular, the Applicant submits that the UNHCR Handbook, at paras. 53 and 54, requires the Board to assess the claim from the perspective of the "mind of the Applicant".
[7] In this case, there is both a subjective and objective component to be examined. Firstly, did the experiences of the Applicant as a Christian youth growing up in Egypt amount to persecution? Secondly, would the Applicant, as a Coptic Christian be subjected to persecution upon his return to Egypt? For this second component, the question to be examined is whether the treatment of Coptic Christians in Egypt amounts to persecution.
[8] Both of these determinations are directly within the competence of the Board and are subject to review on a patently unreasonableness standard.
[9] The Board does not make any explicit finding about whether the experiences of the Applicant, other than the incident in 1992, amounted to persecution. With respect to the treatment received by the Applicant while he was in Egypt, the Applicant described, in general terms, his experiences growing up in Egypt in an "atmosphere of hate and intolerance by the fundamentalists on the one hand and tacit indifference, if not outright discrimination and persecution by the government on the other". The Board's failure to address this aspect of the claim in its reasons is understandable. During the hearing, the Applicant was very clear in his testimony that, but for the incident in 1992, he would have stayed in Egypt. The 1992 incident together with his fear of the situation that exists today (rather than prior to 1992) formed the basis of his claim. That is exactly what the Board assessed.
[10] Turning to the evaluation of the situation facing Coptic Christians in Egypt, the Board carried out a detailed review of the documentary evidence. The Board acknowledged the documentation that described the situation for Christians as amounting to persecution. In this analysis, the Board referred directly to many of the documents submitted by the Applicant.
[11] Where the Board has before it evidence that supports its conclusion, the Court will not readily interfere with the weight assigned to that evidence. Although conflicting evidence may have been before the Board, it was not necessary for the Board to refer to each and every piece of that evidence. A conclusion that the Board made its decision without regard for the evidence should only be reached if the Board fails to demonstrate that it had an appreciation for the documentary evidence as a whole. In this case, there is no need for the Court to intervene.
[12] In summary on this issue, the Board's conclusion that the situation faced by the Applicant does not amount to persecution was not patently unreasonable.
Issue #2: Did the Board err in its assessment of the Applicant's credibility?
[13] The Applicant relied on one incident of alleged persecution to support his claim, that being an incident in 1992 when he claims that a fatwah was issued against him. The Board concluded that this event did not occur.
[14] In general, on this issue, the Applicant asserts that the Board carried out a microscopic examination of his testimony, "in its zeal to find the Applicant unbelievable" (Attakora v. Canada (Minister of Employment and Immigration), (1989), 99 N.R. 168, at para. 2 (F.C.A.)).
[15] As stated in Attakora at para. 9, the Board should not be "over-vigilant in its microscopic examination of the evidence". However, with respect to the decision of Attakora relied on by the Applicant, I note significant differences between that case and the case before me. In Attakora, the tribunal had based its lack of credibility on only three minor aspects of the claimant's story. The Court of Appeal at para. 8 found that one of the findings had no "conceivable relevance to any issue which the Board had to decide." With respect to the other two conclusions, the Court of Appeal concluded that there was no evidence. I do not have such a situation before me.
[16] As noted above, the Board put forward a long list of implausibilities in the evidence that impugned the credibility of the Applicant's story. There appears to be no argument by the Applicant as to the relevance of any of these findings. The findings dealt with, among other things, such important matters as:
_ Inconsistencies between the story that he told U.S. officials and that he put to the Board;
_ Whether it was plausible that he could live in Cairo for a number of years without incident;
_ Whether a negative inference could be drawn from his failure to identify more specifically his profile within the Christian student population and the name of the alleged agents of persecution; and
_ Whether someone with a fear of persecution would delay leaving Egypt and delay coming to Canada from the United States to claim refugee status.
[17] Further, there was evidence before the Board for each one of the Board's conclusions. As a result, I conclude that the examination by the Board was not overly microscopic; rather it addressed the elements of the Applicant's story as it was required to do.
[18] This does not determinatively answer, however, the question of whether the Board erred in its decision. If the Board's decision was based on a series of findings that cannot be supported by the evidence, the decision will be fatally flawed.
[19] A review of the decision of the Board makes one thing very clear: there was no one determinative finding that swayed the Board. Rather, it was the cumulative impact of a number of implausibilities that led the Board to its overall conclusion.
(a) Flyers
[20] The first alleged error made by the Board was with respect to there being flyers declaring a "jihad" or "fatwah" against the Applicant. The Board stated in its reasons that the evidence adduced to support the existence of these flyers was that the claimant "had been told by a friend who had been told by another friend". The Applicant submits that the evidence was that he was told by a friend of its existence. In fact, what the transcript shows is that neither the Applicant nor his friend saw these flyers. Rather, the friend overheard the conversation of persons coming out of a Mosque and reported back to the Applicant what he heard.
[21] Whether the evidence was from a friend to the Applicant or from a conversation overheard by a friend to the Applicant, it was certainly open to the Board to make a finding that "[o]ne can hardly accept this as best evidence," particularly where there is no other corroboration. In my view, the failure of the Applicant to produce better evidence of the very foundation of his claim that there was a fatwah against him demonstrated a significant weakness in his case.
(b) Failure to describe activities and Gemaat Islamiya
[22] The Applicant submits that the second problem arises where the Board impugned the Applicant's credibility on the basis that he had not referred to his church activities or identified the agents of persecution as the Gemaat Islamiya in his personal information form ("PIF"). In his PIF, when describing the events of 1992, the Applicant refers to rumours that he was a "mastermind" behind printed crosses because of his religious activities in El Menia University. He also refers to "Islamic extremists".
[23] In its decision, the Board stated:
The Claimant was asked why he had not mentioned his Church activities in his PIF or that the agents of persecution were the Gemaat Islamiya. The claimant stated that he had only given a summary in his PIF and had left the details for the hearing. I am not satisfied with the claimant's explanation. His activities with the Church are allegedly what set him apart and gave him a profile. His profile and the identity of the agents of persecution are important elements of his claim. I drew a negative inference from the absence of this information from his PIF.
[24] During his oral testimony at the hearing, when questioned, the Applicant provided details about his activities, indicating that his involvement with the Church included organizing activities and tours for youth groups, weekly meetings on Thursdays and attending services on Fridays. Later, when asked if he was "generally known at the university for the activities" he was involved with, the Applicant replied: "yeah of course I was known because they know that I arrange trips".
[25] With respect to the conclusion that the Applicant failed to identify the activities that gave him the profile that attracted the attention of the Muslim extremists, I do not conclude that the Board's conclusion was patently unreasonable. It is up to the Applicant to identify the key elements of his claim in his PIF. The PIF contained only a very simple description that could have applied to the other 20% of the student population that was evidently not targeted by the Gematt Islamiya.
[26] Where the Applicant relies on his Christian profile as the reason for his persecution, it is not unreasonable for the Board to expect further details in his PIF. Certainly, if this were the only finding of the Board that supported its conclusion, I might question its importance, but it is only one of the many findings of the Board related to the Applicant's credibility. The Board's finding was not patently unreasonable.
[27] The Applicant submits that Gemaat Islamiya means Islamic extremists and the Board's assessment that he failed to disclose the agent of persecution in his PIF is wrong in fact. I must agree. While the claimant uses various terms to describe the agents of his persecution, he appears to be consistent from his PIF to his oral testimony with the exception of the one term. On this conclusion of the Board, I am of the view that the Board misapprehended or ignored the evidence; the terms Gemaat Islamiya and Muslim extremists were evidently used interchangeably in this context. The Board erred.
(c) Different story in U. S. refugee claim
[28] As noted, the Applicant had made an unsuccessful refugee claim in the United States. Throughout his U.S. claim and resulting appeals, the Applicant alleged that his cousin was implicated in a plot to spray crosses on Muslim students with magic paint. As part of this claim, the Applicant stated that a group of Muslim girls claimed that his cousin was using a small printing machine and was printing crosses on the doors and walls of the Muslim girls' rooms in the dormitory. When confronted with this difference, the Applicant alleged that the difference was due to the fact that he did not have competent counsel or interpretation in the United States. The Board stated that, although it "had no other evidence to contradict the claimant's explanation", based on its credibility concerns, it was "disinclined to believe the claimant". The Applicant submits that this is another example of the Board's overzealousness. I do not agree.
[29] The portion of the Board's decision dealing with this concern is not particularly well written. At first, it seems to accept the Applicant's explanation of the difference but then goes on to say that it is "disinclined to believe the claimant". In my view, in spite of the awkward words, the Board had before it evidence upon which to base a conclusion that there was a conflict between the two stories that was not satisfactorily explained. The two stories are markedly different. One involves paint sprayed on clothes and the other with small machine that printed crosses on doors. The story used for the United States' claim remained the same throughout the refugee claim and the appeal process. It is not logical that a false story about the only event of persecution claimed by the Applicant would remain unchanged throughout this lengthy process. The Board's conclusion that the differences between the two stories were not adequately explained was not patently unreasonable.
(d) "Hiding"in Cairo
[30] After the alleged incident in 1992, the Applicant moved and lived in Cairo. The Board stated as follows:
Furthermore, despite the claimant's allegation that the fundamentalist, Gematt Islamiya, had a countrywide network that would hunt him down throughout the country, the claimant spent three uneventful years in Cairo. When this was pointed out to the claimant, he stated that he remained indoors while he was in Cairo. The claimant stated he was only going to a few classes. It was also brought to his attention that he renewed his passport and applied for a visa and that both these activities, including the requirements of shopping for food etc., would require him to leave the house. The claimant reiterated that he led a very private life. I do not believe the claimant was in hiding. The evidence and simple logic lead me to believe that while he may have led a quiet life he was certainly not in hiding.
[31] The Applicant asserts that the Board erred since the Applicant never said that he was in hiding.
[32] There are two problems with this argument. The first is that the transcript shows that the Applicant clearly stated that he was in hiding in Cairo.
[33] The second and more fundamental problem with this argument is that the Applicant has missed the point of this portion of the decision. The conclusion of the Board is contained, not in the final sentence, but in the first sentence noted in the above passage. The evidence pointed to by the Board demonstrates the weakness of the Applicant's submission. If the incident took place as alleged and there was a fatwah against him by a countrywide extremist group, why was he able to live in Cairo - attending university and carrying out other functions - unmolested? His story was simply implausible. The fact that he was able to lead a quiet life supports the Board's inference. There is no error.
(e) Delay in making a claim
[34] In addition to the concerns described above, the Board also drew a negative inference from the Applicant's delay in making a claim. In spite of the fact that his appeal of the negative refugee determination in the United States was dismissed in 1999, he delayed coming to Canada until 2003. A person who truly believes that his life is in danger will, absent some otherwise compelling reasons, seek the earliest and any opportunity to regularize his status. In this case, that was not done and the Applicant's explanation was not persuasive. It was not unreasonable for the Board to draw a negative inference from his delay.
Summary
[35] In short, the Board was justified in examining the elements of the Applicant's story and determining that the material facts lacked credibility. Even though I have concluded that the Board erred on one point (related to the identification of the Muslim extremist group), I am satisfied that this error was of minor significance. The overall conclusion of the Board with respect to the Applicant's credibility was not patently unreasonable.
CONCLUSION
[36] For these reasons, the application will be dismissed. Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed;
2. No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1968-04
STYLE OF CAUSE: MAGID SEFEEN v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 1, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: March 17, 2005
APPEARANCES:
Yehuda Levinson FOR APPLICANT
Leena Jaakkimainen FOR RESPONDENT
SOLICITORS OF RECORD:
Levinson and Associates FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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