Date: 20000403
Docket: IMM-4698-99
ENTRE:
Adel Fawsi NICOLA,
Partie demanderesse
ET:
LE MINISTRE DE LA CITOYENNETÉ ET DE L" IMMIGRATION,
Partie défenderesse
REASONS FOR ORDER
TEITELBAUM, J:
INTRODUCTION
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (Act) of a decision of the Refugee Division of the Immigration and Refugee Board, dated September 17, 1999, wherein the applicant was found not to be a Convention refugee.
[2] The applicant is seeking an order setting aside the decision and remitting the matter back for a hearing before a newly constituted panel of the Board.
FACTS
[3] The applicant is a 37 year old citizen of Egypt who married his wife, a Canadian citizen, on August 1, 1993. They reside in Montreal and have one five year old daughter.
[4] The applicant holds a Bachelor of Science degree from the Faculty of Engineering of the University of Cairo in Egypt. He did not do military service because he left Egypt for Canada following his graduation.
[5] The applicant applied for refugee status on the grounds of religious persecution in November 1988 after arriving in Canada in August 1988 as a visitor.
[6] The applicant was granted permanent residence in Canada in August 1991.
[7] Between 1989 and 1999, the applicant worked as a technician in Quebec and Ontario.
[8] He was found guilty of several cases of bank fraud carried out in 1995, in February 1998 and in May of 1998.
[9] The applicant was deported in February 1999 to Egypt where his two brothers and parents still live.
[10] The applicant returned to Cairo on February 23, 1999 and attempted to hide while obtaining a new passport in order to leave Egypt as soon as possible.
[11] The applicant alleges that he was targeted due to his activities in the Christian community in Cairo, and when his father was hit by a car while walking on April 1, 1999, the hit and run driver was actually targeting him.
[12] The applicant stayed with his father while he was hospitalized but left Egypt after obtaining his passport on April 18, 1999.
[13] On April 29, 1999, the applicant returned to Canada illegally through the United States. He did not claim refugee status upon entering the country.
[14] After being arrested by immigration authorities on May 1, 1999, the applicant claimed refugee status.
[15] Following his arrest, the applicant was detained by immigration authorities due to the likelihood that he would not report when requested to do so for removal from Canada to Egypt.
[16] At a detention Review hearing conducted on May 7, 1999, the applicant indicated that immigration authorities were wasting their time and money by deporting him because he would be back as soon as possible after being removed.
[17] At the hearing before the Refugee Board on August 31, 1999, the applicant alleges that he did not seek the protection of authorities in Egypt as he believed that they would not intervene unless the victims of Islamic extremists happened to be foreign tourists.
[18] The applicant"s fear of persecution is based on the Islamic extremists and he fears he will be killed by them should he return to Egypt.
[19] During the hearing, counsel for the applicant raised two preliminary questions at the outset of the hearing: the first being about the purpose of the intervention of the Minister"s representative and the second about the competence of the tribunal.
[20] It was explained by the Minister"s representative that the purpose of his intervention was to contest the credibility of the applicant.
[21] With regards to the question relating to the competence of the tribunal, counsel for the applicant stated that his client had made a claim for refugee status in 1989 and via, the "Expedited Process" had been granted credible basis for his claim by an Immigration Officer.
[22] Therefore, his counsel"s view was that his client had never ceased to be a refugee and that the Board could only confirm this as his status. In response to this, the Minister"s representative explained that those persons who were granted a credible basis by the immigration authorities in 1989 were considered "a designated class" which allowed the claimant to either go for a full hearing of his claim or to apply for permanent residence.
[23] The claimant chose to apply for permanent residence and it was granted in August 1991.
[24] It was then explained by the Board that, given the backlog in the system at that time, when a credible basis for a refugee claim had been established, the applicant was allowed to apply for landing from within Canada. In order to qualify for landing, the applicant had to satisfy the statutory requirements and must not have been dependent on public welfare assistance.
[25] The applicant met these requirements, opted for landing status and was granted it in 1991.
[26] Therefore, the applicant had not been granted refugee status previously before a tribunal. The Board then proceeded to hear the applicant"s claim on its merits.
DECISION OF THE BOARD
[27] The essence of the Board"s decision is contained in the following paragraphs:
| Having examined all of the testimonial and documentary evidence presented, the panel considers that the claimant has not established a well-founded fear of persecution in his country of origin because of his Christian religion and his membership in a particular social group, namely a Christian Copt. |
| The panel had ample opportunity, as the hearing lasted a full day, to observe and hear the claimant testify. His answers were often evasive and brought out implausibilities and contradictions which remained without acceptable explanations. We found his testimony to lack credibility. |
| Asked at the start of the hearing at what time he decided to flee his country, he replied that it was back in 1988, once he had finished his studies. When asked what prompted him to leave Egypt , he mentioned that it was a series of events, back then, such as: Professors at the university told him to concentrate on his studies rather than keep busy teaching religion to young children for four hours a week on Fridays; he was not given good grades at oral examinations because he was a Christian; a driver attempted to hit him when he was taking school children back home after church. Considering that the claimant did graduate with an Engineering Degree, the panel fails to see how he could have been discriminated against, even less so persecuted. |
STATUTORY PROVISIONS
Immigration Act, R.S.C. 1985, c. I-2
| "Convention refugee" "réfugié au sens de la Convention"
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
|
|
| "réfugié au sens de la Convention" "Convention refugee"
"réfugié au sens de la Convention" Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays don"t elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
|
|
| Exception
(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.
|
Exception
(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
|
Federal Court Act, R.S.C. 1985, c. F-7
Subsection 18.1(4)
Grounds of review
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Paragraphe 18.1(4)
Motifs
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
ISSUES
| [28] The questions raised in this application are: |
| (1) Did the Board make an erroneous finding that the applicant had not previously been determined to be a Convention refugee? |
| (2) Did the Board err in its assessment that the applicant lacked credibility? |
| (3) Did the Board make a reviewable error of fact or law by ignoring or misconstruing the evidence? |
SUBMISSIONS
Applicant"s Submissions
[29] The applicant submits that the Board erred in law by rejecting the determination made by a previous panel that he was a Convention refugee. It is submitted that when the applicant initially claimed refugee status in November 1988, he presented documentation before an adjudicator and a representative of the Refugee Board on April 1, 1991 to support his claim that he had a well-founded fear of persecution in Egypt based on his religion and his membership in a particular social group.
[30] The applicant argues that he received a decision stating that it was " la décision du tribunal " which concluded that his claim did have a minimum basis and that he was a Convention refugee.
[31] Thus, the applicant submits that it was not unreasonable for him to believe that he already had a hearing before the Refugee Board which considered his claim on the merits and found that he was a Convention refugee.
[32] Secondly, it is the applicant"s submission that the Board erred in not taking into account the decision of the tribunal dated April 15, 1991 in which he was found to be a refugee, and further erred in ignoring relevant evidence.
[33] More specifically, the applicant argues that the Board failed to consider the conclusions drawn from the interview on April 15, 1991 wherein the applicant"s claim was determined to have a minimum basis.
[34] The applicant emphasizes that at no time did the Board state that it doubted the conclusions in the decision dated April 15, 1991 yet its assessment of the facts is totally contrary to that decision.
[35] It is submitted that the Board only took into consideration the new facts alleged in his application and failed to consider the factual situation which has been the reason for his refugee claim since he left Egypt in 1988.
[36] Thirdly, the applicant argues that the Board erred in finding that the applicant"s testimony was not credible when there was ample documentary evidence to support the applicant"s allegations of persecution in Egypt.
[37] The applicant submits that the Board failed to consider the situation of other members in his community who were also persecuted by reason of their religion and belonging to a particular social group. The Board was presented with numerous pieces of documentary evidence which indicated that the applicant himself had been persecuted by Islamic fundamentalists as had other members of his religious community.
[38] Finally, the applicant argues that the Board erred in finding that the applicant had not established a well-founded fear of persecution by Islamic extremists based on his participation in the Christian community in Cairo.
Respondent"s Submissions
[39] With regard to the first issue, the respondent argues that the Board clearly explained at the hearing held on August 31, 1999 that the applicant had never had his claim reviewed on its merits before a Refugee Board and therefore had never previously been found to be a Convention refugee.
[40] In essence, the Board stated that the claimant had chosen to apply for permanent residency instead of having his claim reviewed before a full hearing and was successful in meeting the requirements for landing status. He was granted landing in 1991 but was never determined to be a Convention refugee.
[41] Secondly, the respondent argues that the Board clearly indicated in its reasons that it had thoroughly considered all of the evidence submitted at the hearing before concluding that the applicant had failed to establish a well-founded fear of persecution.
[42] Furthermore, the respondent refers this Court to the jurisprudence which articulates that the failure to mention specific pieces of evidence does not establish that the evidence was ignored by the Board. There is a presumption that all of the evidence was taken into consideration in the absence of any proof to the contrary.
[43] It is the respondent"s position that the applicant has failed to demonstrate that the Board ignored or misconstrued any evidence in arriving at its conclusion that the applicant was not a Convention refugee.
[44] Thirdly, the respondent submits that the Board was not unreasonable in concluding that the applicant lacked credibility. The Board cited numerous inconsistencies and implausibilities in the applicant"s testimony which led it to conclude that he was not credible.
[45] In summary, the respondent argues that the applicant had failed to establish any reviewable error of fact or law which would warrant the intervention of this Court.
ANALYSIS
Applicant"s 1989 Claim for Refugee Status
[46] At the outset of this application, the applicant argued that the tribunal was not competent to hear his present claim on its merits due to the fact that he had been granted "credible basis" by an immigration officer in 1989.
[47] The documentary evidence clearly establishes that the applicant"s claim was processed, as were thousands of others, through the "Expedited Process" which allowed the claimant to apply for landing after having established a credible basis for his claim.
[48] As the Board indicated at the hearing on August 31, 1999, should the claimant have been found not to have a credible basis for his claim, then he would not have had the option of applying for landing and would automatically have been referred for a full hearing of his claim before the Refugee Board.
[49] The facts also show that the applicant then received a letter which stated that his claim had been considered by a tribunal and was found to have a credible basis. Given that the applicant was successful in demonstrating a credible basis claim, he was permitted to apply for landing and was successful in his application.
[50] However, I must emphasize that at no time was his application ever considered on its merits prior to August 31, 1999. Therefore, the Board was within its jurisdiction in hearing this matter and in stating that no prior determination of refugee status had ever occurred.
Adverse Credibility Finding
[51] In my view, the central issue in this application is the Board"s finding that the applicant lacked credibility. The Board made a general finding of lack of credibility which it supported by specific examples.
[52] This determination resulted from the Board"s assessment of the applicant"s testimony in light of his answers on his PIF and his responses to questions from the Board on specific points of evidence such as why he did not claim refugee status until he was arrested by immigration authorities, why he imputes his hit and run accident to Islamic extremists but could not explain why they did not attempt to strike him again later, and why he alleges that they would be able to remember him more than eleven years after this incident.
[53] The Board found that the applicant"s responses to several questions which were central to his claim were evasive and vague. Further, the Board found that his answers on his PIF and his actions in the past illustrated that he lacked credibility.
[54] This Court is reluctant to interfere with findings of credibility where evidence exists to support the Board"s decision: Amoah v. Canada (M.E.I.) (F.C.A.) (A-206-92, February 9, 1995) and Luckner v. Canada (M.E.I.) (F.C.A.) (A-255-90, April 21, 1998).
[55] The applicant now contends that this Court should intervene on the basis that the Board ignored the evidence and erred in making this adverse credibility finding.
[56] I am well aware that it is within the jurisdiction of this Court to intervene in a Board"s decision if the Board misconstrued the evidence in making an adverse credibility finding: Rezaei v. Canada (M.E.I.) (A-255-90, April 30, 1992).
[57] However, there is nothing in the evidence before the Court to suggest that the Board either ignored or misconstrued the evidence before it at the hearing on August 31, 1999. The reasons of the Board enumerate specific portions of evidence which were implausible and answers to questions which were wholly unsatisfactory, as well as providing a detailed explanation as to why the applicant"s claim had been previously processed to enable him to claim permanent residency while not requiring a full hearing on the merits.
[58] I refer to the remarks of this Court in Bennasir v. Canada (Minister of Citizenship and Immigration)(F.T.D.) (Imm-852-97, April 27, 1998) which address the issue of credibility as follows:
| Normally, the Court will not interfere with the credibility findings of the Board, which has had the opportunity to observe the applicant"s testimony first-hand. As such, the Board is in a better position than a reviewing Court to weigh the credibility of those who testified before it: Rajaratnam v. M.E.I. (1991), 135 N.R. 300 (F.C.A.); Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.); Bar v. M.E.I. (1993), 152 N.R. 157 (F.C.A.). However, in arriving at its findings, the Board must not draw adverse inferences on findings of facts which are manifestly in error: Gracielome v. M.E.I. (1989), 9 Imm.L.R. (2d) 237 (F.C.A.). Moreover, the Board must express its adverse findings concerning credibility in clear and unmistakable terms: Hilo v. M.E.I. (1991), 15 Imm.L.R. (2d) 199 (F.C.A.). |
[59] The findings of the Board in this case are expressed in clear and unmistakable terms. The applicant"s testimony was not credible nor did the documentary evidence establish a well-founded fear based on his religion. In addition, the applicant deliberately attempted to mislead Canadian immigration authorities and has committed several cases of fraud in this country.
[60] I am satisfied that the applicant has been provided every opportunity to present his claim for refugee status, both in 1991 and in his present application, and he has failed to meet the criteria required by subsection 2(2) of the Act. His own actions caused his landing status to be removed and consequently, he is now separated from his wife and daughter.
[61] I am not convinced that the applicant has demonstrated that the Board"s decision was unreasonable or that it ignored or misconstrued the evidence. Therefore, the application for judicial review is hereby dismissed.
[62] As I have stated, I am also satisfied that at no time was the applicant granted "refugee status". He has been granted "permanent residence" after a "credible basis" hearing and nothing else.
[63] The present application for judicial review is denied.
QUESTION FOR CERTIFICATION
[64] The applicant asks the Court to certify the following question as being one of general importance:
| Les revendicateurs du statut de réfugié, visés par le Règlement sur la catégorie admissible de demandeurs du statut de réfugié dont la revendication avait un minimum de fondement, tel que décidé par un commissaire et un arbitre, sont-ils des réfugiés au sens de la Convention et de la Loi sur l"immigration du Canada. |
[65] With due respect to counsel for the applicant, I fail to see how the above question can be considered as being one of general importance.
[66] The issue of this case has been decided by various judges of this Court in the cases of Demirtas v. Canada [1993] 1 F.C. 602, Asif v. Canada [1993] F.C.J. No. 1201 and Kanes v. Canada [1993] F.C.J. No. 994.
[67] I see no purpose to have the issue revisited, as Mr. Justice Rothstein states in Gonzales v. Canada [1994] F.C.J. No. 1844 at page 4 of his decision in dealing with the Regulations involving the issue of backlog.
| The Regulations deal with Convention refugee claimants who signified before January 1, 1989 an intention to make a Convention refugee claim. I do not think a question under these Regulations raises a serious question of general importance today. No question will be certified for the Federal Court of Appeal. |
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
April 3, 2000
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