Docket: IMM-2745-17
Citation:
2017 FC 1107
Vancouver, British Columbia, December 5, 2017
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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ANTRANIG MIHRAN
KRIUOR GHAZIGIAN
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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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JUDGMENT AND REASONS
[1]
This applicant seeks the judicial review of the
decision made by the Refugee Appeal Division [RAD] on May 18, 2017. The
judicial review is made pursuant to section 72 of the Immigration and
Refugee Protection Act (S.C. 2001, c. 27) [IRPA], and it relates to the
appeal decision which affirmed the decision of the Refugee Protection Division
[RPD] that the applicant is neither a convention refugee nor a person in need
of protection (sections 96 and 97 of IRPA).
I.
The facts
[2]
The applicant is a 64-year-old citizen of Egypt.
He is a Christian of Armenian descent who lived in Cairo. The applicant alleges
that he cannot return to Egypt due to a dispute with his Muslim landlord who,
according to the applicant, caused for threats on his life to be made. In
effect, the applicant claims that he has been “singled
out” because of his religion.
[3]
This case is in relation to a lease that the
applicant inherited after his mother’s death. It appears that under Egyptian
Law, he was entitled to continue the lease at the same rental rate that his
mother paid in 1971. Furthermore, the applicant had a previous dispute with the
same landlord, but in relation to a second unit that he rented as an office.
[4]
In May 2013, the applicant claims that he was
illegally evicted and his property stolen, including a large amount of cash and
valuables. The applicant testified that the police investigated only briefly
and improperly concluded that the eviction was lawful. We understand that the
applicant eventually brought a lawsuit against the landlord but he complains of
the case proceeding slowly. As of the date of his refugee hearing, the case was
before a panel of three judges, who transferred the matter to the expert’s
office for a report in December 2015. According to the applicant, the expert
report could take years.
[5]
The applicant alleges that he received direct threats
from the landlord’s associates. Thus, he testified that the first threat was on
August 17, 2013, after he had filed a police report. The person said, according
to the testimony, “we don’t want you to, we know that
you are following the case, we don’t want you to be around. This is a warning
to stop carrying on, following it”. The second threat would have been made
in November 2013 and words uttered were: “You will be
killed. We will send you back in a coffin. Even if you get the flat back, we
kill you.”
[6]
Since September 2013, the applicant had been
moving between his office and various hotels in Cairo. In December 2014, the
applicant approached the United Nations Human Rights Office of the High
Commissioner for help, but he was informed that they could not do anything as
this is a civil dispute.
[7]
Eventually, the applicant fled Egypt for the
United States in February 2016, using an American multiple-entry visa. Having
consulted an American counsel, he chose to cross the border with Canada where
he thought there was a better chance of receiving the refugee status he was
seeking. Hence, he made a refugee claim in Canada in March 2016. The RPD
dismissed the application on November 10, 2016, which took the matter to the
RAD. The RAD decision is the subject of the review.
II.
Decision under review
[8]
The applicant submitted new evidence in
accordance with subsection 110(4) of IRPA. That new evidence was ruled
admissible. It consists of news articles with respect to the religious
discrimination that exists in Egypt concerning Christians. The other new
evidence consists of the updated national documentation package as of March 31,
2017.
[9]
The RAD decision simply finds that this case is
about a dispute between a landlord and a tenant which may, or may not, be
involving some possible criminality. That, in the view of the RAD, does not
meet the standard of section 96 of IRPA which calls for “a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion”. The RAD stated at paragraph 47:
[47] After a
fulsome and independent analysis of the evidence adduced, I find that
this Appellant has failed to establish that he has or will be persecuted on any
Convention ground. I believe that the Appellant has and may continue to suffer
some discrimination and the documentary evidence supports that. However, the
issue at the core of this claim is a civil matter with possible criminal
overtones. Being a victim of crime or of a civil dispute is not persecution as
outlined in refugee law. There must be more than a mere chance of risk and a
nexus for a Convention reason to meet the standard of section 96. Although
religion did appear to give a nexus to the Convention, after a thorough
examination of the facts on hand, I find that religion plays such a minor
part, if any, in the Appellant’s dispute that it does not constitute religious
persecution.
[10]
The applicant is also unsuccessful in his
attempt to claim that he is a person in need of protection, pursuing to section
97 of IRPA. Here, the RAD finds that “there must be
more than a serious risk, there must be a risk on a balance of probabilities”
(para 48). In effect, the RAD was of the view that this is a civil dispute
which cannot rise to the level of supporting a refugee claim or making someone a
person in need of protection. Specifically, the RAD found that “there is less there than a
mere possibility that the Appellant would be persecuted in Cairo.” (para
49)
[11]
The applicant was certainly unhappy with the
lack of involvement of the police in Cairo in spite of his reports to the
authorities. However, even if that were the case, that would not establish that
the applicant is mistreated because he is a Christian. Read as whole, the
reasons given by the RAD are based on the insufficient nexus with the religion
of the applicant. The RAD states specifically that “(t)he
only time the Appellant has actually had anything close to religious discrimination
rear its ugly head in this case occurred when, some three years or so before
the landlord dispute began, a person unrelated to any of that core dispute was
unhappy with the Appellant and threatened to send him back to Whatever place the
Appellant came from, in a box. That, to me, sounds more like an “anti-foreigner”
slur than a religious one” (para 40). There was simply insufficient
evidence to support the allegation that religion or ethnicity were involved.
III.
Arguments and standard of review
[12]
The parties are in agreement, and I share the
view, that the standard of review applicable to a case like this is
reasonableness. It does not suffice that the applicant could show that there is
another possibility, after the examination of the facts, other than the one
reached by the RAD. Rather, the applicant’s burden is to show that the outcome
reached by the RAD is not one of the possible, acceptable outcomes in view of
the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1
SCR 190, para 47).
[13]
The applicant’s argument is, to a large extent,
to argue his case on the basis that the eviction was illegal and that it was
based on the applicant’s religion. The applicant also takes issue with the
quality of the investigation that was conducted by the public authorities in
Egypt, but he does not offer any evidence that the limited investigation that
has taken place is because of his ethnicity or religion. On the contrary, there
was evidence to the effect that the police thought the matter to be private. As
pointed out by the Crown, whether or not this is the right decision by the
Egyptian authorities is neither here nor there. What the applicant had to show
was that the decision to consider the matter to be private was based on
religion.
[14]
Furthermore, the applicant seems to be satisfied
with his own belief that the actions taken against him were based on his
religion, as opposed to making a demonstration that such is the case. Indeed,
it is noteworthy that the applicant disclosed, during the hearing, that the
rent for the apartment had to be paid into Court between 2005 and 2013 because there
was an obvious dispute with the landlord who was refusing to receive the rent
paid every month. To put it another way, the dispute between the landlord and
the applicant is not a new phenomenon. The evidence shows that there was in
fact another dispute in the same building between the landlord and the
applicant about another space.
IV.
Analysis
[15]
The applicant’s burden was to show that the
outcome is not one of the possible acceptable outcomes. That demonstration has
not been made. Instead, the Court was invited to assess the dispute between the
parties in Egypt and to accept that it was based on the religion of the
applicant, the landlord being a Muslim. There is, in the view of the RAD,
insufficient evidence to support that contention. In fact, the Court was able
to ascertain that it was close to an absence of evidence of a nexus in the
dispute between the landlord and the applicant. The mere fact that the landlord
is Muslim and the applicant Christian does not establish a ground of
persecution. The applicant seems to invite the adjudicator to assume that the
difficulties encountered in Egypt are by reason of religion. It is a leap the
RAD did not make and there is nothing unreasonable in that.
[16]
As is well known, the mere fact that an
applicant believes that the actions taken are religious persecution is of no
moment. An objective basis for such belief must be shown and it was not present
in the evidence before the RPD and the RAD. Similarly, there was no
demonstration on a balance of probabilities that it is more likely than not
that the applicant would be personally subjected to a danger of torture, a risk
to life, or a risk of cruel and unusual treatment or punishment if removed to
his country of nationality. There was simply if not an absence of evidence, a
paucity of evidence presented in this case. The burden to show on a balance of
probabilities that the outcome reached is not one of the possible outcomes has
not been discharged.
[17]
The applicant submitted that “even the single failure by the RPD and the RAD to consider
that the genesis of his problems in Egypt (eviction) has religious discrimination
amounted to a reviewable error” (memorandum of fact and law, para 26).
That, to my way of thinking, is bootstrapping at its best. The existence of
documentary evidence showing discrimination against Christians in certain areas
in Egypt, without more, does not show persecution in this case. In lieu of
demonstrating a religious discrimination, the applicant argues that it should
be taken for granted and that, in and out of itself, would constitute a
reviewable error. It was for the applicant to show the nexus with religion or
ethnicity and the failure to do so is fatal. Others have concluded that this is
a civil case with, perhaps some criminal overtones. There was nothing
unreasonable in the RAD decision.
[18]
As a result, the judicial review application
must be dismissed. The parties did not offer a serious question of general
importance that would have to be stated in accordance with section 74 of IRPA.
Indeed, there was none.
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