Date:
20131016
Docket: IMM-10486-12
Citation:
2013 FC 1046
Ottawa, Ontario,
October 16, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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HANY MICHEAL SAMY BOTROS
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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 JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of C. Ruthven, a Senior
Immigration Officer at Citizenship and Immigration Canada [the Officer],
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act]. The Officer rejected a Pre-Removal Risk Assessment
[PRRA] application submitted by the Applicant.
I. Issues
[2]
The
issues raised in the present application are as follows:
A.
Was
the Officer’s decision unreasonable?
i)
Did
the Officer err by failing to consider a risk raised by the Applicant?
ii) Did
the Officer err by ignoring country conditions evidence before him?
iii) Did
the Officer err by either (a) making a negative inference based on the absence
of evidence which the officer thought “should” have been present; or (b)
dismissing the Applicant’s evidence for its non-compliance with technical rules
of evidence, which do not apply in administrative decision-making?
II. Background
[3]
The
Applicant is an Egyptian citizen and a Coptic Christian. He arrived in Canada on December 3, 2002, and made a refugee claim that was refused in September, 2003.
[4]
The
Applicant filed an application for permanent residence in Canada on humanitarian and compassionate grounds on November 2, 2006, and an application
for a first PRRA the following month. Both were dismissed on February 13, 2009,
and the Applicant was scheduled for removal on April 30, 2009.
[5]
A
second PRRA was filed on March 19, 2009. It was refused on December 8, 2010, and
the Applicant’s removal was scheduled for January 29, 2011. The Applicant
applied for judicial review of the second PRRA decision and for a stay of his
removal. These were granted, and the second PRRA was remitted for redetermination.
[6]
On
February 16, 2012, the second PRRA was refused. The Applicant applied for
judicial review and subsequently discontinued this application the following
month.
[7]
Previously,
on March 10, 2011, a third PRRA was submitted, with additional testimonials
submitted on July 27, 2011. On October 16, 2012, an addendum to the third PRRA
was submitted [the Addendum]. This material formed the basis for the decision
under review.
[8]
Through
the third PRRA, the Applicant claimed that he would be subject to persecution
if he was returned to Egypt. Cited in support was documentary evidence of
persecution of Copts and government instability in Egypt, letters of
corroboration from One Free World International (Reverand Majed El-Shafie), the
Middle East Christians Association, St. Mark’s Coptic Orthodox Church, and a
number of individuals in Canada. In addition, the Applicant provided an undated
letter from his wife, describing an incident where she and the Applicant’s
children were intimidated and subsequently shot at in a taxi, resulting in injuries
from broken glass. The existence of these injuries is corroborated by a letter
from the treating physician. The Officer did not challenge the credibility of
this evidence.
[9]
The
Addendum includes additional documentary evidence, particularly regarding the
impact of the anti-Islamic film, Innocence of Muslims, in September, 2012.
[10]
On
August 31, 2012, the Officer rejected the PRRA. The Officer’s decision rested
on the fact that there was insufficient objective evidence that would reverse
the rejection of the Applicant’s previous PRRA applications and original
refugee claim.
[11]
The
Officer considered the various letters of support but found that they were
either too vague, consisted of second-hand information, or too speculative. As
a result, the Officer assigned them low probative value. The Officer stated
that he preferred instead to rely on notional first-hand accounts sourced from
family members, who would have been physically present in Egypt, or first-hand accounts from medical authorities or non-governmental organizations in Egypt, which were missing. Numerous inconsistencies leading to credibility and plausibility
questions concerning the Applicant’s position as a Court Clerk in Egypt were raised by the Officer in respect of his earlier PRRA applications.
[12]
The
Officer considered the letter portraying the alleged incident involving the
Applicant’s spouse, noting that there was no corroborative evidence from
objective sources and the injuries described by the treating physician do not
confirm her description of how the injuries occurred, merely that they exist.
[13]
Based
on a review of current country conditions, the Officer found that there was
insufficient objective evidence to find that the discrimination that the
Applicant would potentially face in Egypt would, in cumulative effect, amount
to persecution. The Officer held that there was no more than a mere possibility
that the Applicant would face persecution, a risk to his life, or cruel and
unusual treatment pursuant to sections 96 and 97 of the Act.
[14]
The
Addendum to the PRRA decision, released on October 16, 2012, followed the
receipt of additional documentary evidence. The Officer held that the sole
topic which was not fully addressed in the August 31, 2012, decision was
evidence pertaining to the Innocence of Muslims, an anti-Islamic film released
in California by a Copt. This film engendered backlash in various Muslim
communities, and documentary evidence provided to the Officer suggested that
Copts in Egypt were fearful of reprisals.
[15]
The
Officer found that the Applicant had not demonstrated a personalized risk to
himself in Egypt based on the attempts to protest against the film or persecute
the film’s producers in the United States. The Officer concluded this based on
the fact that the Applicant had failed to show objective evidence that he was
involved in the production, distribution or otherwise associated with the film.
III. Standard of review
[16]
The
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9 at paras 51-52; Sidhu v Canada (Minister of Citizenship and Immigration),
2004 FC 39; Ram v Canada (Minister of Citizenship and Immigration), 2010
FC 548).
IV. Analysis
[17]
Based
on the reasons that follow, I allow the Applicant’s application.
A. Was the Officer’s Decision
Unreasonable in Failing to Consider a Risk Raised by the Applicant?
[18]
The
Applicant alleges in his Memorandum of Fact and Law that the Officer failed to
consider all the risks raised by the Applicant (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2010 FC 1015 at paras 13-16). I
agree. The Officer’s Addendum decision failed to relate the impact of the
Innocence of Muslims film to Copts as a group, rather to his personalized
involvement in the film or his connection to the American government. In making
this argument, the Applicant cites page 2 of the Addendum, where the Officer
emphasized the Applicant’s lack of ties to the production and distribution of
the film or ties to the American government. Citing the Addendum documentary
evidence, the Applicant argues that there were examples of Copt Egyptians who
were unrelated to the production of the film but were nonetheless persecuted.
[19]
The
Officer claims to have “carefully reviewed” the relevant portions of the
Addendum submissions, including the Applicant’s claims that the film would
present a risk of persecution as a member of the Copt community, but that is
the extent of the Officer’s analysis with regard to the Applicant as a member of
a group. Beyond assertions that the Applicant has provided insufficient
evidence, the Officer’s analysis states:
Specifically, I do not find that the applicant has
presented sufficient objective evidence to demonstrate that he was involved in
the production of the film; involved in the posting of the film on web pages or
on social media; or involved in the film’s distribution or publicity. In
addition, I do not find that the applicant has presented sufficient objective
evidence to demonstrate that he has any type of direct association with the
government of the United States of America, or any type of direct association
with the diplomatic staff of the United States of America who are posted in the
Arab Republic of Egypt.
His analysis was unreasonable based
on the evidence before him.
B. Did the Officer Err by Ignoring
Country Conditions on the Evidence Before Him?
[20]
In
his Memorandum of Fact and Law, the Applicant claims that the Officer made
three errors in ignoring evidence before him.
[21]
First,
the Applicant argues that a PRRA officer is expected to analyze country
condition documentation, rather than simply quote long extracts (Ram,
above).
[22]
Second,
the PRRA officer is expected to discuss documentary evidence contradicting his
findings (Guzman v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 401 at paras 23-24).
[23]
In
his Further Memorandum of Argument, the Applicant also argues that the Officer
selectively referred to documentary evidence to support his conclusion that the
Applicant would face discrimination, rather than persecution, an error that
renders the decision unreasonable (Prekaj v Canada (Minister of Citizenship
and Immigration), 2009 FC 1047 at paras 26-31; SRH v Canada (Minister of
Citizenship and Immigration), 2012 FC 1271 at paras 39-43). While
acknowledging that an officer need not consider all evidence, the omission of
key evidence from a decision will render it unreasonable (Rathnavel v Canada
(Minister of Citizenship and Immigration), 2013 FC 564 at para 25-26; Pinto
Ponce v Canada (Minister of Citizenship and Immigration), 2012 FC 181).
[24]
Finally,
a PRRA officer’s conclusion is unreasonable where the documentary evidence
cited actually contradicts an officer’s findings (Touma v Canada (Minister of Citizenship and Immigration), 2012 FC 657).
[25]
It
is trite law that an administrative decision-maker need not refer to every piece
of evidence in its decision, but the more important that evidence is to its
decision, the more likely a court will be to find that it ignored evidence if
that evidence is not discussed (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at paras 16-17).
[26]
In
this case, the Applicant provides numerous excerpts from the evidence before
the Board which shows evidence of Copts suffering persecution in Egypt, evidence which contradicts the Officer’s ultimate finding but was not analyzed.
[27]
In
particular, the Applicant notes that a definition of “Persecution” from the
United Nations Handbook is omitted from the excerpts provided by the Officer in
the Decision. Similarly, the Officer omitted portions of the United States
Department of State 2011 Report on International Religious Freedoms and the
2012 Report of the United States Commission on International Religious Freedom,
which support the claims of the Applicant by describing various physical
attacks against Copts in Egypt.
[28]
In
this case, the Officer referred, generally, to a great deal of evidence showing
instances of persecution against Coptic Christians.
[29]
While
the Officer considered evidence of persecution that painted a broad picture of
the persecution suffered by the Copts, including instances of brutal state
oppression, probative evidence on this front, fundamental to the decision,
seems to have been dismissed or ignored (Cepeda-Gutierrez, above). This
is unreasonable.
[30]
Citing
long excerpts without more may lead to the conclusion that the PRRA officer has
not carried out a proper analysis or ignored pertinent information. This
appears to be the case here with respect to the Officer’s review of the
documentary evidence before him. Again, this is unreasonable.
C. Did
the Officer Err by Either (A) Making a Negative Inference Based on the Absence of
Evidence Which the Officer Thought “Should” Have Been Present; or (B)
Dismissing the Applicant’s Evidence for its Non-Compliance with Technical Rules
of Evidence, Which Do Not Apply in Administrative Decision-Making?
[31]
In
his Memorandum of Fact and Law, the Applicant argues that the Officer erred in
dismissing the testimonial evidence on the basis of what hypothetical evidence
he thought was preferable and the fact that the evidence did not conform to the
rules of evidence (Ahmadi v Canada (Minister of Citizenship and Immigration),
2012 FC 812 at para 20; Canada (Attorney General) v Jolly, [1975] FC 216
(FCA)).
[32]
With
regard to hypothetical evidence, the Applicant alleges that the Officer was not
allowed to dismiss evidence based on the fact that other evidence would have
been more desirable (Mui v Canada (Minister of Citizenship and Immigration),
2003 FC 1020 at paras 34-36). In his Further Memorandum of Argument, the
Applicant re-emphasizes this point, suggesting that the Officer failed to
undertake any meaningful analysis of the written testimony, choosing instead to
focus exclusively on what was not submitted (Zheng v Canada (Citizenship and
Immigration), 2007 FC 974 at para 9).
[33]
I
agree. Moreover, the Officer seems to have a “notion” of what evidence he would
like to have seen (direct from third party witnesses), but chose to disregard
probative evidence before him. This includes the findings in the Report of the
United States Commission on International Religious Freedom, which refers to
the systematic, ongoing and egregious violation of religious freedom in Egypt, including Coptic Christians.
[34]
Given
my reasons above, I need not deal with the issue concerning the technical rules
of evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application is allowed and referred back to a differently
constituted Board for reconsideration;
2.
No
question is to be certified; and
3.
Given
no submissions were made as to costs, no costs are awarded.
"Michael D.
Manson"
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