Date: 20110314
Docket: IMM-4717-10
Citation:
2011 FC 303
Toronto,
Ontario, March 14, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MALAK LOFTI REYAD GAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
Mr.
Gad is a Coptic Christian who is afraid to return to Egypt. His refugee
claim, based on a fear of fanatical Islamists, one Osama (not bin Laden) in
particular, was dismissed in 2003. His first pre-removal risk assessment (PRRA)
was negative. It was decided in November 2009. He also sought permission to
apply for permanent resident status from within Canada on
humanitarian and compassionate grounds. That too was denied.
[2]
He
filed a second PRRA, which like the first, was based on events which occurred
in Canada. He submits
he is a refugee sur place. That assessment, delivered in April 2010, was
also negative. This is a judicial review thereof.
[3]
This
decision does not take into account events occurring since the second PRRA. It
is notorious that since then President Hosni Mubarak was ousted from office.
A new PRRA, and there will be a new PRRA as I am granting this judicial review,
will have to take that factor into account, as well as the current status of
Coptic Christians in Egypt.
[4]
While
in Canada, Mr. Gad has
been writing articles critical of the Egyptian regime, and attended four public
demonstrations in front of the Egyptian Embassy or Consulates. Two of these
occurred before the first PRRA decision, and two after. He also attended a
public meeting with Egyptian Government officials in the basement of a Toronto area Coptic
church. This meeting took place after the first PRRA decision.
[5]
The
PRRA officer’s decision does not stand up to any probing analysis, and so is
unreasonable (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190).
[6]
With
respect to the four demonstrations, the officer was of the view that the first
two demonstrations should have been brought to the attention of the first PRRA
officer. She determined that the second two were similar in nature, and so did
not consider the impact of any of the four. The issue was whether these
demonstrations, which were filmed by Egyptian officials, would have come to the
attention of the government in Cairo.
[7]
Although
counsel submits that it was the PRRA officer’s duty to consider the first two
demonstrations as they had taken place after the failed refugee claim, even
though they were not brought to the attention of the first PRRA officer, it is
not necessary for me to comment. The officer’s reasoning was circular. Two of
the demonstrations took place after the first PRRA decision. These were new
facts within the meaning of s. 113 of the Immigration and Refugee Protection
Act and it certainly was her duty to consider their impact. She failed to
do so.
[8]
With
respect to the church meeting, she discounted Mr. Gad’s affidavit which was to
the effect that he was extremely vocal and critical and certainly would have
come to the attention of the Egyptian authorities. She also discounted a letter
of support from another attendee. She relied more on a newspaper article filed
by Mr. Gad which she indicates reported that the meeting was more fruitful, and
that although diverging opinions were voiced, there was not sufficient
objective evidence to demonstrate that increased attention would be paid to him
as a result.
[9]
She
was also of the view that had he come to the attention of the authorities in
Egypt, they would have, in one form or another, harassed, or at least
communicated with, his family in Egypt, notwithstanding they knew perfectly
well he was here.
[10]
I
question the PRRA officer’s account of the newspaper article. First of all, it
notes that an aide to the Foreign Affairs Minister was a speaker, and that he
did say he wanted to have a dialogue with the Egyptian community in Canada. However,
the English translation of the Arabic article says: “at the meeting there was
very tense and attracting[sic] moments between the delegation and Coptic
of Canada…” and set out in detail the complaints which were made with respect
to the lack of freedom of religion and proper and just investigation of tragic
events affecting Coptics in Egypt.
[11]
It
is pure speculation on the part of the PRRA officer’s part that had Mr. Gad
come to the attention of the authorities his family and colleagues in Egypt would have
been approached in one way or another by the authorities. How are we to
possibly know what is in the mind of the persecutor? The fact of the matter is
that the record clearly discloses that the Mobarak regime brooked no dissent
and that on the balance of probabilities Mr. Gad certainly had come to the
attention of the authorities. In fact, he was in their face.
[12]
In
light of these findings, I need not consider other submissions brought on Mr.
Gad’s behalf, or to certify as a serious question of general importance whether
documents and information which could have been presented at the first PRRA,
but were not, are still “new”, within the meaning of the Act, when applied to a
second PRRA.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
decision rendered by the PRRA officer is set aside and the matter is returned
to another PRRA officer for redetermination.
3.
There
is no serious question of general importance to certify.
“Sean
Harrington”
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