Docket: IMM-7187-14
Citation:
2015 FC 865
Ottawa, Ontario, July 14, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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HAZEM HALIM
ISKANDER FAHMY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
[1]
The question is whether Mr. Fahmy, a Coptic
Christian, would be at serious risk of persecution, or worse, were he returned
to Egypt. The answer is that I do not know. I do not know because the decision
of the officer who assessed his risk is seriously flawed. The only solution is
to grant Mr. Fahmy’s application for judicial review and to remit the matter
back to another officer for redetermination.
I.
The Applicant’s Unsuccessful Refugee Claim
[2]
In 2010, while in Egypt, Mr. Fahmy, together
with one Emad Adly, assisted two young women who were facing forced conversion
to Islam after marrying Muslim men. The women were taken to a Coptic Church and
community centre, but later decided to return to their husbands. Thereafter he
was threatened and later arrested, detained and tortured.
[3]
His refugee claim was dismissed, although it was
accepted that he was a Coptic Christian. There were huge credibility issues.
[4]
The plight of Coptic Christians was noted in
this decision going back to 2012, but it was considered that their treatment
did not amount to persecution.
[5]
His application for leave to judicial review of that
decision was dismissed.
II.
Pre-Removal Risk Assessment
[6]
Before the Court now is the judicial review of
his unsuccessful pre-removal risk assessment (PRRA).
[7]
Section 113 of the Immigration and Refugee
Protection Act provides that in such applications only new evidence that
arose after the dismissal of the refugee claim, or that was not reasonably available,
or that the applicant could not have reasonably been expected in the
circumstances to have presented may be considered.
[8]
A great deal of paper was filed as to what
happened to Mr. Adly and as to the more recent treatment of Coptic Christians
in Egypt. For reasons I simply do not understand, the PRRA officer said there
was no new evidence. There certainly was new evidence, which evidence was not
properly considered.
[9]
Mr. Adly’s death certificate was produced. It
gives the date and place of death. There is no room on the form to offer an
opinion as to why he died.
[10]
Letters produced by two Coptic priests in Egypt state
that Mr. Adly was killed by a mob belonging to the Muslim Brotherhood as a
result of troubles which began in November 2010 while dealing with the two
young Christian women referred to above.
[11]
One of the priests interviewed Mr. Adly’s mother
and some eyewitnesses. It seems that when Mr. Adly was leaving his house three
bearded persons stopped him and stabbed him in the back and stomach. This evidence
was dismissed as hearsay.
[12]
As to the plight of Coptic Christians generally,
a great deal of documentation was filed with respect to attacks on churches,
religious buildings and the private property of Christians following the ouster
of President Morsi in July 2013. A number of Christians were beaten with clubs,
stabbed, or killed.
III.
Analysis
[13]
The Immigration and Refugee Board of Canada is
not bound by strict evidentiary rules pertaining to hearsay. The evidence of
the two priests cannot simply be dismissed on that basis. Even if the death
certificate stated that Mr. Adly had died as a result of knife wounds, strictly
speaking that would not constitute evidence that he was killed by the Muslim
Brotherhood, as opposed, to say, in a barroom brawl. If the investigation had
been carried out by a police officer, rather than a priest, that report would
also be hearsay.
[14]
While it may have been better to give the names
and addresses of eye witnesses, one has to consider the state of fear
prevailing at the time. As one of the priests noted, he sent his report by fax
to avoid his letter being intercepted by the Muslim Brotherhood or corrupt
government officials. It is clear there was new evidence, which was dismissed
out of hand on improper grounds.
[15]
Apart from Mr. Fahmy’s own situation, the
officer does not explain his conclusion that there has been no significant
change in country conditions as regards Coptic Christians. As stated by the
Supreme Court in Dunsmuir v New Brusnwick, 2008 SCC 9, [2008] 1 S.C.R. 190
at paragraph 47, in determining whether a decision is reasonable, a Court must
refer “both to the process of articulating the reasons
and to outcomes.”
[16]
Dunsmuir is
invariably read together with Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
That decision put paid to the proposition that inadequate reasons constituted a
breach of the duty of procedural fairness. At paragraphs 14 and 15, the Court
emphasized that the reasons must be read together with the outcome to determine
whether the result fell within an acceptable range. “This
means that courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome” (para 15).
[17]
It seems to me that given the immense change of
country conditions in Egypt, if the Court were to ferret about to compare the
situation at the time of Mr. Fahmy’s refugee hearing with that at the time of
his pre-removal risk assessment, the Court would be usurping the function, and
duty, of the officer.
[18]
As in Botros v Canada (Minister of
Citizenship and Immigration), 2013 FC 1046, a decision of Mr. Justice
Manson, instances in the record of brutal state oppression seem to have been
dismissed or ignored (para 29).
[19]
As Mr. Justice Rennie, as he then was, stated in
Pathmanathan v Canada (Minister of Citizenship and Immigration), 2013 FC
353, at paragraph 28:
Newfoundland Nurses does not authorize a court to rewrite the decision which was based
on erroneous reasoning. The reviewing court may look to the record in
assessing whether a decision is reasonable and a reviewing court may fill in
gaps or inferences reasonably arising and supported by the record. Newfoundland
Nurses is a case about the standard of review. It is not an invitation to
the supervising court to re-cast the reasons given, to change the factual
foundation on which it is based, or to speculate as to what the outcome would
have been had the decision maker properly assessed the evidence.
As in that case, I am not prepared to
speculate as to what the outcome would have been had the evidence been properly
assessed.
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