Docket: IMM-2194-17
Citation:
2017 FC 1112
Toronto, Ontario, December 6, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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KHALED SABER
ABDELHAMED ZAHW
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Court finds that the Immigration Division
[ID] failed to conclude if and how the Egyptian military was engaged in an act
of force that intended to overthrow a government by force (Shandi (Re),
[1991] F.C.J. No. 1319 (QL) [Shandi]). The Immigration and Refugee Board
of Canada [IRB or Board] has to study the evidence on the record as a whole, in
addition to comprehensive, fulsome Country Condition Evidence emanating from
the Board. In its reasons, the ID cited the Federal Court of Appeal’s decision
in Najafi v Canada (Public Safety and Emergency Preparedness), 2014 FCA
262 [Najafi], indicating that “subversion by
force of a government” means “using force with a
goal of overthrowing any government”, but that the term “may be distinguished by its specific objective from the
broader concept of use of force against the state. It specifically involves
using force with the goal of overthrowing the government, either in some part
of its territory or in the entire country” (Najafi, above, at
para 12). The evidence, as discussed in the ID reasons, was also generalized,
not specific to the Applicant’s involvement in the military given the unit in
which he worked, and lacked information which caused the ID to fail to assess
the goal of the Egyptian military in the 2013 events.
II.
Nature of the Matter
[2]
This is an application for judicial review filed
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c-27 [IRPA] of a decision of the ID of the Board dated April 24,
2017 in which the ID found that the Applicant is inadmissible under paragraph
34(1)(f) of the IRPA. The ID made a Deportation Order against the Applicant
pursuant to paragraph 229(1)(a) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR].
III.
Facts
[3]
The Applicant, aged 51, is a citizen of Egypt.
[4]
The Applicant was an officer of the Egyptian
military. He began his career in 1989 as a First Lieutenant and later retired
in January 2015, at the rank of Brigadier General.
[5]
During the Applicant’s employment with the
Egyptian military, the President of Egypt, Mr. Mohamed Morsi, was removed from
office in the July 2013 events by the Defense Minister General Abdul Fatah
al-Sisi, opposition leader Mohamed ElBaradei, the Grand Imam Ahmed el-Tayeb,
and Coptic Pope Tawadros II.
[6]
On July 21, 2015, the Applicant and his
wife arrived in Canada on a visitor visa and on November 24, 2015, the
Applicant filed a claim for refugee protection, currently suspended.
[7]
On February 3, 2016, a report was made, pursuant
to subsection 44(1) of the IRPA, which found the Applicant to be inadmissible
on security grounds for being a member of an organization on which there are
reasonable grounds to believe that he had engaged in subversion by force of the
government of Egypt as prescribed by paragraphs 34(1)(b) and 34(1)(f) of the
IRPA. The Applicant was referred to the ID for an admissibility hearing.
IV.
Decision
[8]
On April 24, 2017, having considered all
the evidence, the ID found that there are reasonable grounds to believe that
the Applicant is inadmissible to Canada pursuant to paragraph 34(1)(f) for
34(1)(b) of the IRPA, which is the decision under review in this application
for judicial review. As a result of that decision, the Applicant was made
subject to a deportation order.
[9]
In its analysis, the ID had to establish two
elements in order to find the Applicant inadmissible under paragraph 34(1)(f)
for 34(1)(b): (i) he has to be a member of the Egyptian military and (ii) that
organization must have engaged in or instigated subversion by force of the
Egyptian government.
[10]
The ID was satisfied that the Applicant was a
member of the Egyptian military, based on the totality of all documentary
evidence, sworn testimony and concessions on behalf of the Applicant. The ID
therefore concluded that it was not necessary to analyze the Applicant’s
membership, as there was no dispute that the Applicant was an active member of
the Egyptian military. The ID noted that the Applicant graduated as an Engineer
in 1989, and was, therefore, responsible for handling the military’s
communication network.
[11]
The Applicant claimed that he did not
participate in any acts of violence or subversion against the government.
Nonetheless, the ID indicated in its analysis that paragraph 34(1)(f) of the
IRPA does not require active participation in subversion by force of any
government, only that the person be a member of the organization.
[12]
Both the Applicant and his counsel contested the
fact that a military coup had taken place in Egypt in July 2013. For the purpose
of the admissibility hearing, the ID indicated that it was not its role to
determine whether or not a coup d’état had actually taken place in Egypt.
[13]
After a careful review of the documentary
evidence on file, the ID came to the conclusion that “it
was nonetheless the use of military force that led to the overthrow of a
legitimately voted-in government, replacing the elected president, Mr. Morsi,
with the leader of the military, General al-Sisi” (ID’s Reasons and
Decision, para 32).
Therefore, it is this Panel’s findings that
it was the intentions and direct actions of the military that have forced a
change of regime and that there are reasonable grounds to believe that
subversion by force by the Egyptian military has taken place.
(ID’s Reasons and Decision, para 33.)
V.
Issues
[14]
This matter raises the following issues:
1.
Did the ID err by concluding that the Egyptian
military had instigated the subversion by force of the Egyptian government in
2013, based on all the evidence before the Board?
2.
Was it reasonable for the ID to find that it did
not have to determine whether a coup d’état took place in Egypt in July 2013?
3.
Were the ID’s factual findings reasonable?
[15]
The Court finds that the applicable standard of
review for the above mentioned issues is that of reasonableness. Whether a
person is a member of an organization pursuant to paragraph 34(1)(f) of the
IRPA is a question of mixed fact and law and this Court must show deference to
the impugned decision unless it is determined that the decision does not fall
within a range of possible acceptable outcomes which are defensible in respect
of the facts and the law (Khan v Canada (Citizenship and Immigration),
2017 FC 397 at paras 15-16; Dunsmuir v New Brunswick, 2008 SCC 9 at para
47 [Dunsmuir]).
VI.
Relevant Provisions
[16]
Section 33 of the IRPA states:
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Inadmissibility
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Interdictions
de territoire
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Rules of
interpretation
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Interprétation
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33 The facts
that constitute inadmissibility under sections 34 to 37 include facts arising
from omissions and, unless otherwise provided, include facts for which there
are reasonable grounds to believe that they have occurred, are occurring or
may occur.
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33 Les faits
— actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition
contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont
survenus, surviennent ou peuvent survenir.
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[17]
Paragraphs 34(1)(b) and 34(1)(f) of the IRPA
state that the following individuals are inadmissible to Canada:
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Security
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Sécurité
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34 (1) A permanent resident or a foreign national is inadmissible on
security grounds for
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34 (1) Emportent interdiction de territoire
pour raison de sécurité les faits suivants :
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…
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[…]
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(b) engaging
in or instigating the subversion by force of any government;
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b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
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…
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[…]
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(f) being a
member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a),
(b), (b.1) or (c).
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f) être
membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1)
ou c).
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VII.
Submissions of the Parties
A.
Submissions of the Applicant
[18]
According to the Applicant, the ID erred by
determining that the Egyptian military had engaged in subversion by force of
the government of Egypt. The ID erroneously noted in its reasons that a new
administration was led by General al-Sisi following the removal of the
president of Egypt, Mr. Morsi, from office on July 3, 2013. In fact, there was
evidence before the Board that there were large protests against the government
of Mr. Morsi and there was broad public consensus that led to the ultimate
removal of the president from power in 2013.
The overthrow of President Morsi may seem
like a military coup. But to all intents and purposes it is not. The call for
Morsi’s ousting was made by millions of Egyptians who went out on the streets
for four days in a row, raising Egyptian flags and chanting one word directed
at him: “Erhal”, meaning, “leave, depart”. Without the presence of those
millions on the streets and their determination to get rid of Mohamed Morsi and
his Muslim Brotherhood, the military would certainly not have intervened.
[Emphasis added.]
(Applicant’s Record, The Guardian (July 4,
2013), This is not a coup, but the will of Egypt’s people, p 230.)
[19]
In Eyakwe v Canada (Citizenship and
Immigration), 2011 FC 409 at para 30, the Federal Court agreed with the ID
that “the most common definition for subversion is the
changing of a government or instigation thereof through the use of force,
violence or criminal means”. In the case at bar, the Applicant argues
that there was no evidence before the Board showing that the Egyptian military
overthrew the government through violent or criminal means. The evidence rather
indicates that it was the large group of civilian protesters which justified
President Morsi’s downfall.
[20]
In the same order of ideas, the Applicant
submits that the subsection 44(1) report was issued based on the following
information: “the Egyptian military carried out a
coup against the democratically elected government of Egypt on 03 July
2013”. Given this factual allegation in the subsection 44(1) report, the
ID had to determine whether a coup d’état actually took place. According to the
Merriam-Webster Dictionary, a coup d’état is defined as “the violent overthrow or alteration of an existing
government by a small group”. Subversion is also defined as the “systematic attempt to overthrow or undermine a government or
political system by persons working secretly from within”. Therefore,
the ID had to determine whether the allegation in the report was well-founded,
as it was required by the Board to determine whether the Egyptian military was
involved in the overthrow of the Egyptian government (an act of subversion),
which is by definition a coup.
[21]
Finally, the Applicant submits that the ID erred
in its factual findings concerning the July 2013 events in Egypt.
Specifically, the ID erred by indicating in its reasons that General al-Sisi
took over the presidency, thus becoming the new unelected President of Egypt,
following the removal of President Morsi from office through military means.
There was also no evidence before the ID indicating that General al-Sisi was in
fact the unelected president of Egypt. According to the Applicant, such
findings contradict the documentary evidence before the ID:
Under a “road map” for a post-Morsi
government devised by a meeting of civilian, political and religious leaders,
the general said, the Constitution would be suspended, the chief justice of
the Supreme Constitutional Court, Adli Mansour, would become acting president,
and plans would be expedited for new parliamentary and presidential elections
under an interim government.
[Emphasis added.]
(Applicant’s Record, The New York Times
(July 3, 2013), Army Ousts Egypt’s President; Morsi Is Taken Into Military
Custody, p 68.)
The Applicant argues that erroneous findings
on important facts are sufficient to set aside the decision, because it has
impacted the primary determination as to whether the Egyptian army engaged in
subversion by force of the government of Egypt.
B.
Submissions of the Respondent
[22]
The Respondent, on the other hand, argues that
the ID’s conclusion on inadmissibility under paragraph 34(1)(f) is reasonable.
The evidence supports the ID’s finding that the Egyptian military engaged in
subversion of the democratically elected government. The Applicant was also a
member of the Egyptian military and his membership was not contested.
[23]
According to the Merriam-Webster Dictionary and
the Oxford English Dictionary, the Respondent submits that “subversion” is defined as a systematic attempt to
overthrow or undermine a government or political system by persons working
secretly from within. In Al Yamani, “subversion”
is also given the following definition:
[S]ubversion [is] not limited to the actual
act but to be engaged in these activities the words envisage participation by
one who assists or facilitates the objective as one who commits the actus
reus. Any act that is intended to contribute to the process of overthrowing
a government is a subversive act.
(Al Yamani v Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 317 (QL) at para 13 [Al
Yamani])
[24]
Unlike what the Applicant argues, the Respondent
submits that the ID did not need to decide whether the Egyptian military
engaged in a coup d’état. For the purpose of the admissibility hearing, the ID
had to decide whether the organization to which the Applicant belonged engaged
in subversion. According to the Respondent, the fact that the subsection 44(1)
report described the events as a coup d’état does not make the ID’s decision to
focus on the requirements of the IRPA, under paragraphs 34(1)(f) and 34(1)(b),
unreasonable. Moreover, the Respondent argues that the report was intended for
the minister’s delegate, who then decided to refer the matter to the ID for an
admissibility hearing. Consequently, the subsection 44(2) report makes no
mention of a coup d’état, as the ID simply had to determine whether the
Applicant is inadmissible under paragraph 34(1)(f) of the IRPA for the
admissibility hearing.
[25]
Finally, the Respondent disagrees with the
Applicant’s argument about alleged factual errors by the ID. Even if they were
true, the Respondent argues that the ID’s decision would still remain
reasonable. Whether the head of the armed forces assumed power after the
overthrow of the Egyptian government or whether the Chief Justice of the
Egyptian Supreme Court was sworn-in as president was not the issue by which to
come to the conclusion that there was subversion by force by the Egyptian
military and that the Applicant’s membership in the armed forces made him
inadmissible under paragraph 34(1)(f) of the IRPA.
VIII.
Analysis
[26]
For the following reasons, the application for
judicial review is granted.
A.
Did the ID err by concluding that the Egyptian
military had instigated the subversion by force of the Egyptian government in
2013, based on the evidence before the Board?
[27]
Based on the evidence before the ID, the Court
finds the decision to be unreasonable. The documentary evidence before the
Board could not conclude that there was subversion by force by the Egyptian
military of the Egyptian government. In fact, the ID did not specify any country
condition reports recognized as reliable and trustworthy. Instead, the evidence
relied on by the ID mainly consists of articles and newspapers such as “The New York Times” and “The
Guardian” on the events of July 2013. The evidence does not show that there
are reasonable grounds to believe that the Egyptian military, at the time, met
the definition of an organization seeking “the
subversion by force of any government” within the meaning of paragraph
34(1)(b) of the IRPA.
[28]
The evidence as a whole has to be studied in
depth. The expertise of the evidence was not considered significantly enough
with respect to the documents that were provided by the Applicant for analysis.
Even if brief, the specialized decision maker of the ID must take into
consideration the expertise demonstrated in reliable documents. Through the
specialization of the ID, the member of the Board must also evaluate and
weigh the evidence with regard to the government in place. The acts to be
considered consist of that which the government in place did as reported by
international monitoring groups, in addition to the background country
conditions that prevailed as evidence before the panel.
[29]
What decision will eventually be rendered by the
ID will have to take into consideration the intricacies of the evidence as
clearly outlined in the context as a whole before the panel.
[30]
Furthermore, while the Applicant admitted to
being a member of the Egyptian military from 1989 to 2015, the Board made an
erroneous finding of inadmissibility under paragraph 34(1)(f) of the IRPA. By
making two separate and independent determinations, the Board failed to
establish a nexus between the Applicant’s membership in the organization and
the organization’s involvement in the removal of President Morsi from office in
2013 (El Werfalli v Canada (Public Safety and Emergency Preparedness),
2013 FC 612 at para 59 [El Werfalli]).
In order for a finding of inadmissibility to
be made under paragraph 34(1)(f) for 34(1)(b) against Mr. Zahw, two elements
must be established: he must be a member of the Egyptian military, and, that
organization must have engaged in or instigated the subversion by force of the
Egyptian government.
(ID’s Reasons and Decision, para 13.)
Paragraph 34(1)(f) “is
a single provision requiring regard for all its elements in an integrated
manner” (El Werfalli, above, at para 60).
[31]
The issue before the Board was not whether the
Applicant had engaged in, or instigated, subversion by force of the government
of Egypt, but whether there were reasonable grounds to believe that the
Egyptian military had done so with regard to the Applicant’s membership in that
organization.
In order, then, to determine whether an
applicant was or is a member of an organization described in ss. 34(1)(a), (b)
or (c), an assessment of their participation in the organization must
be undertaken.
[Emphasis added.]
(Kanendra v Canada (Minister of
Citizenship and Immigration), 2005 FC 923 at para 24.)
Although the evidence on record is not clear
whether the events of June/July 2013 constitute a coup d’état, with the
intention of overthrowing the government of Egypt by force, the ID still failed
to make an assessment of the Applicant’s membership in the Egyptian military.
As previously stated, Mr. Zahw has conceded
to the fact of his membership in the Egyptian military, it is, therefore,
unnecessary for this Panel to engage in lengthy analysis on this point except
to say that it is clear from the evidence that Mr. Zahw viewed himself as a
member and was actively involved in the activities of this organization. The
Panel is satisfied that far more than reasonable grounds exist to establish
that Mr. Zahw was a member of the Egyptian military given the totality of all
documentary evidence, sworn testimony and concessions on behalf of Mr. Zahw.
(ID’s Reasons and Decision, para 19.)
B.
Was it reasonable for the ID to find that it did
not have to determine whether a coup d’état took place in Egypt in July 2013?
[32]
At the risk of repeating itself, the Court finds
that the ID had to determine whether the 2013 events were a military coup,
based on the objective evidence in the record. In fact, there is an important
distinction to be made between a coup d’état and a military intervention. On
one hand, evidence in the record shows that:
Without the presence of those millions on
the streets and their determination to get rid of Mohamed Morsi and his Muslim
Brotherhood, the military would certainly not have intervened.
[Emphasis added.]
(Applicant’s Record, The Guardian (July 4,
2013), This is not a coup, but the will of Egypt’s people, p
230.)
Dec. 4 – More than 100,000 protesters march
on the presidential palace, demanding the cancellation of the referendum and
the writing of a new constitution. The next day, Islamists attack an anti-Morsi
sit-in, sparking street battles that leave at least 10 dead.
[…]
Jan. 25, 2013 – Hundreds of thousands hold
protests against Morsi on the second anniversary of the start of the revolt
against Mubarak, and clashes erupt in many places.
Feb.-March – Protests rage in Port Said and
other cities for weeks, with dozens more dying in clashes.
[…]
July 1 – Huge demonstrations continue, and
Egypt’s powerful military gives the president and the opposition 48 hours to
resolve their disputes, or it will impose its own solution
July 2 – Military officials disclose main
details of the army’s plan if no agreement is reached: replacing Morsi with an
interim administration, canceling the Islamist-based constitution and calling
elections in a year. Morsi delivers a late-night speech in which he pledges to
defend his legitimacy and vows not to step down.
(CTR, The Daily Star (August 15, 2013), Timeline
of key events in Egypt’s uprising and unrest, p 74.)
It is recalled that the Morsi government
declared itself to have immunity from judicial review (also, p 74 of the Daily
Star of August 15, 2013), following the violent protests which erupted and
only, thereafter, did the military attempted to create order.
[33]
The Court finds that the ID failed to
conclude if and how the Egyptian military was engaged in an act of force that
intended to overthrow a government by force (Shandi,
above). The IRB has to study the evidence on the record as a whole, in addition
to country condition evidence emanating from the Board. In its reasons, the ID
cited the Federal Court of Appeal’s decision in Najafi, above,
indicating that “subversion by force of a government”
means “using force with a goal of overthrowing any
government”, but that the term “may be
distinguished by its specific objective from the broader concept of use of force
against the state. It specifically involves using force with the goal of
overthrowing the government, either in some part of its territory or in the
entire country” (Najafi, above, at para 12). The evidence on
record was also generalized, not specific to the Applicant’s involvement in the
military given the unit in which he worked, and lacked information which caused
the ID to fail to assess the goal of the Egyptian military in the 2013 events.
C.
Were the ID’s factual findings reasonable?
[34]
Based on the evidence before the ID, it was unreasonable
for the Board to make the conclusive findings that it did in respect to the
military, for the evidence itself demonstrates the opposite; it was rather the
serious unrest in the streets which could not be controlled by the government
that led to the unseating of President Morsi.
July 3 – Egypt’s military chief announces
that Morsi has been deposed, to be replaced by the chief justice of the Supreme
Constitutional Court until new presidential elections. No time frame is given.
Muslim Brotherhood leaders are arrested. Tens of thousands of Morsi supporters
remain camped out in two mass sit-ins in Cairo’s streets.
July 4 – Supreme Constitutional Court Chief
Justice Adly Mansour is sworn in as Egypt’s interim president.
(CTR, The Daily Star (August 15, 2013), Timeline
of key events in Egypt’s uprising and unrest, p 74.)
[35]
Reference is made to a clear understanding of
what inadmissibility must entail (Perez Villegas v Canada (Citizenship and
Immigration), 2011 FC 105 at para 51): “As stated
above, any finding of inadmissibility “should be carried out with prudence, and
established with the utmost clarity” (see Daud above, at paragraph 8)”.
Also, in Muhenda v Canada (Citizenship and Immigration), 2015 FC 854 at
para 35, the Court found that the officer’s decision was “unreasonable because in one key respect it contradicts the
evidence that was before her and in other respects is purely speculative”.
[36]
For these reasons, the Court cannot conclude
that that the decision rendered “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, above, at para 47).
IX.
Conclusion
[37]
For the reasons mentioned above, the application
for judicial review is granted.
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