Date: 20090630
Docket: IMM-52-09
Citation: 2009 FC 680
Ottawa, Ontario, June 30, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MAGDY GAYSR MAGALY BESADH
ENTISAR HIZGYAL EXANDER
MARINA MAGDY GAYSR BESADH
MAKARYOUS BESADH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. BACKGROUND
[1]
The
Applicants, Mr. Magdy Gaysr Magaly Besadh (the Principal Applicant), his wife
(the Female Applicant) and their children (the Minor Applicants) are citizens
of Sudan. They left Sudan in 1994 and have resided in Egypt since that date.
The Applicants applied for permanent residence in Canada as members of the
Convention refugee abroad class or as members of the Humanitarian‑protected
persons abroad designated class. In a decision dated November 20, 2008, First
Secretary H. Dubé (the Officer) of the Government of Canada, Embassy of Canada
in Cairo, Egypt advised the Applicants that their applications were denied. The
Applicants seek judicial review of that decision.
II. THE OFFICER’S DECISION
[2]
In
her decision letter, the Officer stated that she determined that the Applicants
“do not meet the requirements for immigration to Canada”. Her explanation for the rejection was
set out as follows:
Paragraph
139(1(e) of the regulations states that a permanent resident visa shall be
issued to a foreign national in need of refugee protection, and their
accompanying family members, if, following an examination, it is established that
the foreign national is a member of one of the classes described by this
Division. The classes are the Convention refugee abroad class, the country of
asylum class and the source country class.
After
carefully assessing all factors relative to your application, I am not
satisfied that you are a member of any of the classes prescribed because you
have not satisfied me that you have a well-founded fear of persecution. I am
not satisfied that you do not have a durable solution in Sudan. Although you stated that you were harassed you have not
been or continue to be personally and seriously affected by a massive violation
of your human rights or you have a well founded fear of persecution. I am not
satisfied that you meet the definition of country of asylum or convention
refugee. You obtained the assistance of the Sudanese government when you laid
charges against the men you allegedly attacked you in the road. You stated that
the perpetrators were arrested and charged. Further, you have effected your own
departure from Sudan. You managed to obtain an extension of
your Sudanese passport from your embassy in Cairo.
Therefore, I am satisfied that you and your family have a durable solution
available in Sudan. For all these reasons, I am satisfied
that you do not meet the definition of a convention refugee or the country of
asylum definition. Therefore, you do not meet the requirements of this
paragraph.
III. STANDARD OF REVIEW
[3]
The
decision of the Officer is reviewable on a reasonableness standard (See, for
example, Kamara v. Canada (Minister of Citizenship and Immigration), 2008 FC 785 at para.
19; Qarizada v. Canada (Minister of Citizenship and Immigration), 2008 FC 1310 at
para.15-18). As set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 47, a decision is reasonable if “it falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”. However, the issue of the adequacy of reasons, as a question of
procedural fairness, is reviewable on a standard of correctness.
IV. ADEQUACY OF THE REASONS
[4]
The
first issue raised by the Applicants is the adequacy of the reasons of the
Officer. However, the Applicants appear to address this issue based on the
assumption that the letter of refusal constitutes the entirety of the reasons.
This is not correct. The Officer’s Computer Assisted Immigration Processing
System (CAIPS) notes also form part of the certified record and part of the
reasons, in this case. When reviewed together the letter and the CAIPS notes
are, in my view, adequate in that they provide the Applicants with the reasons
why their applications were denied.
V. COUNTRY CONDITION DOCUMENTATION
[5]
The
more serious issues raised by the Applicants are:
1.
Did
the Officer err by failing to specifically refer to and analyze documentary
evidence related to the situation in Sudan?
2.
Did
the Officer err by failing to properly consider the claims of the Female
Applicant and her daughter, one of the Minor Applicants?
[6]
The
Applicants did not submit much supporting material with their application. Some
journal articles about the mistreatment of Christians in Egypt were included;
however, the Applicants did not refer to any documents that could be described
as general country condition documents for Sudan. In her decision, the Officer made no explicit
reference to any general country condition documentation related to Sudan. The Applicants submit
that the Officer was under an obligation to obtain, review and weigh the
documentary evidence, even though it was not referred to by the Applicants.
[7]
Guidance
on the processing of applications such as this is set out in Immigration
OP5: Overseas Selection and Processing of Convention Refugees Abroad Class and
Members of Humanitarian-protected Persons Abroad Classes (Guideline OP5).
The Applicants refers to paragraph 11.2 of OP5. This paragraph, in the
Applicants’ view, places an obligation on the Officer to carry out independent
research of country conditions. Had she done that, the Applicants assert, the
plight of Coptic Christians in Sudan,
a predominantly Muslim country, would have been apparent.
[8]
Paragraph
11.2 of OP5 is not directive. Indeed, as stated, it only purports to guide an
immigration officer who is unfamiliar with the social or political situation in
a specific area. As an immigration officer in Egypt – a country not far from Sudan, with many
similar cultural complexities – it is reasonable to conclude that this Officer
would be familiar with the country conditions of Sudan. There is no evidence that the Officer failed
to take the country conditions into account. In any event, such documentary
evidence, including country condition reports, that the Applicants wished the
Officer to consider should have been presented as part of their application (Qarizada,
above, at para. 30).
[9]
Furthermore,
even had the Officer consulted the evidence upon which the Applicants are now
seeking to rely, it would not, in my view, have led to a finding that Coptic
Christians are systematically subject to persecution by virtue of being in Sudan. Although the evidence
cited by the Applicant indicates that there are incidents of harassment on the
basis of religion and pressures to convert to Islam, the evidence does not show
that all Coptic Christians are inherently at risk in Sudan. Thus, even if the
Officer had a duty to seek out the country documents in support of the
Applicants’ claim, her determination that the Applicants did not face a
well-founded fear of persecution would nonetheless be reasonable.
VI. GENDER-RELATED PERSECUTION
[10]
The
Applicants assert that the Officer was obliged to consider the factors related
to gender as set out in Appendix B – “CIC Declaration on refugee protection for
women” – Guideline OP 5, given that the Female Applicant and her 16 year old
daughter were claiming gender-based persecution. In support, the Applicant
cites the decision of Justice Campbell in Latif v. Canada (Minister of Citizenship and Immigration), 2009 FC 63. As
such, the Officer was required to assess the documentary evidence that related
to problems faced by women in Sudan.
Because the Officer failed to understand or apply the gender-related guidelines
of OP5, it follows that the Officer committed a further error by not ensuring
that the interpreter was female.
[11]
The
problem with this argument is that neither the Female Applicant nor her
daughter identified any gender-related concerns related to Sudan. The only risks
identified in the Female Applicant’s written submissions to the Officer were
very vague and related solely to her identity as a Christian. She did not
describe any incidents that occurred because she was a woman or express any
fear of being a woman in Khartoum, Sudan. The only
reference in the Certified Tribunal Record to her gender is contained in a
letter dated March 24, 1997 signed by a person identifying himself as the
Secretary-General of the Sudan Human Rights Organization. In that letter, the
author claims that the Female Applicant:
is
a victim of gross human rights violations committed by the Sudan government in the Sudan, specially that she is a female
Christian. [The Female Applicant] was a Christian teacher at Mar Girgis church
when she was approached by the regime supporters to convince her of changing
her religion and become a moslim. After her refusal she was subjected to
intimidation, persecution . . . and in fact the whole family became a target
of the Islamic fundamentalists.
[12]
It
is noteworthy that the Female Applicant made no mention of any such incident in
her application narrative. In any event, even if it is an accurate reflection
of events, the letter describes religious-based concerns; there is nothing in
that letter that describes the Female Applicant in terms that would cause the
Officer to believe that she might be a woman at risk of gender-related
persecution. Further, the Female Applicant, during her interview with the
Officer specifically and repeatedly denied that she had any problems or
incidents in Sudan. She finally agreed
with the Officer that she was accused of trying to convert Muslims to
Christianity in Sudan but stated that “I did
not think it was a real problem”.
[13]
The
Female Applicant and her daughter are part of a stable family unit. There are no
allegations of domestic abuse.
[14]
In
short, there was absolutely nothing on the record to indicate that there were
signs of gender-related persecution, or that she was in any way vulnerable, or
that she was a Woman-at-risk, as described in Guideline OP5. On these facts, it
was not unreasonable for the Officer to fail to carry out any analysis of
possible gender-related risks to the Female Applicant and her daughter when
they themselves did not assert any such fears.
VII. CONCLUSION
[15]
In
conclusion, I cannot find a reviewable error in the Officer’s reasoning, any
indication that her decision was based on conjecture, or any deficiencies in
the reasons provided in her refusal decision. Ultimately, the Applicants simply
failed to show that they met the definition of Convention refugees or country
of asylum refugees with no durable solution in a country other than Canada. There is, therefore,
no error. The application for judicial review will be dismissed. Neither party
proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
Email this Content