Moussa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 513

Date: 20020507

Docket: IMM-2638-01

Neutral citation: 2002 FCT 513

BETWEEN:

                                             HANY NOSHY ATHANASSIOUS MOUSSA

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review from the decision of the Post Claim Determination Officer (the "PCDO") who, in an opinion dated April 19, 2001, concluded that the applicant would not face a reasonable possibility of risk if returned to Egypt.

[2]                 The applicant is a citizen of Egypt and a practising Coptic Christian. Since 1996, he has been practising law; during that time he completed his compulsory military service.

[3]                 In 1998, the applicant was approached by a Muslim woman who was sought a divorce from her husband. Although the matter would appear to have been settled, the woman returned to his office displaying signs of physical violence. On the night before the last court appearance, on July 26, 1998, the applicant alleges that three Muslim fundamentalists assaulted him and threatened him if he did not withdraw from the case. Although the applicant reported the matter to the police, they accused the applicant of causing trouble and ordered that he leave the police station. On July 27, 1998, the court granted the divorce and ordered his client's spouse to pay child support.

[4]                 Upon leaving the court house, the applicant claims to have been nearly struck by a car. Later that night, a caller uttered more threats and the applicant decided that he should leave Cairo, where he was living, and go to his hometown, Nagi Hamad. Nevertheless, he relates that he was followed and that his life continued to be threatened. His apartment in Nagi Hamad and his office in Cairo were vandalized and anti-Christian slogans were scrawled on his walls. Given his previous experience however, the applicant chose not to contact the police a second time.

[5]                 He fled Egypt on November 8, 1998 and came to Canada where, on November 26, 1998, he made a claim for refugee protection. That application was ultimately denied. He was not assessed for membership in the post-determination refugee claimants in Canada class because he did not file his application on time. Upon his request however, the pre-removal risk opinion that is at the heart of this application was conducted.

[6]                 The PCDO began by setting out her task as follows (Tribunal Record at 1):

This is an assessment of whether the applicant would face an identifiable risk if removed from Canada, to the extent that such risk would pose a threat to the applicant's life, of extreme sanctions or inhumane treatment in the country of return.

[7]                 The PCDO's conclusion would appear to have been motivated by two important findings. First, the applicant failed to show that he belonged to a group at risk in Egypt. Second, she found evidence to suggest that the applicant could avail himself of protection from the state and that he had not made sufficient attempts to seek such protection. With respect to the first finding, the PCDO stated (Tribunal Record at 1):

Risk, by definition is forward looking, to the possibility of loss, injury or peril. There is insufficient compelling evidence to indicate that the authorities or any other group or individual would be interested in pursuing the applicant or in targeting him for harm upon his return to Egypt. Although documentary evidence indicates that the human rights record of Egypt is far from favourable, this in itself is insufficient to make a positive finding. In order to do so, there must be a link between the applicant's personal circumstances and the country conditions, there is no such link in the case presently before me. (Emphasis added)

[8]                 The applicant argues that, because the PCDO did not expressly impugn the applicant's credibility, then she must have considered his evidence to be credible. It was incumbent upon the decision-maker therefore to explain why she preferred documentary evidence over the applicant's own evidence: Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (F.C.A.).

[9]                 The applicant also submits that the PCDO erroneously concluded that the applicant did not fear persecution on one of the Convention grounds. It is suggested that the PCDO erred in misinterpreting the meaning of persecution on the basis of religion, misconstrued the evidence, ignored evidence and/or failed to consider the evidence in its totality. The applicant is at risk due to his "un-Islamic" views or activities and that he belongs to a particular social group; namely, lawyers who represent the wife of a member of an Islamic fundamentalist group such as the Islamic Brotherhood in family law proceedings. By representing his client as he did, it is argued that the applicant's freedom of expression has been triggered in this case.

[10]            Finally, the applicant argues that he acted reasonably in not seeking further protection from the state given his previous encounter and his experience as a lawyer.

[11]            In the respondent's view, any risk faced by the applicant is the result of a personal vendetta and the PCDO was correct to say that there is no link between such risk and a Convention ground. His client's husband would have been discontent regardless of the applicant's religion. Furthermore, the actions that he engages in are motivated by profit and are not so fundamental to his human dignity that he should not be forced to give them up.

[12]            The respondent also refutes the applicant's contention that it was unnecessary for the applicant to seek the assistance of the police because of a single past experience. The respondent suggests that the applicant should have reported the vandalism of his home and office, if for no other reason than to document the incident for other purposes.

[13]            I have been persuaded that the PCDO erred in concluding that there was no link between the harm feared by the applicant and the country conditions. He does belong to a particular social group, a lawyer engaged in activities perceived to be anti-islamic by the fundamentalists. This can be construed as persecution on the basis of religion.

[14]            In Chan v. M.E.I., [1995] 3 S.C.R. 593, Mr. Justice LaForest expanded on his reasons from Ward v. M.E.I., [1993] 2 S.C.R. 689 regarding membership in a particular social group. He stated:

As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental right.

...

I accept the respondent's categorization of the right asserted as the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law in the International Covenant on Civil and Political Rights...

[15]            The PCDO held that the applicant did not attempt to obtain state protection. In Ward v. M.E.I., supra, the Supreme Court of Canada stated:

...The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize...

[16]            The applicant asked for protection from the Egyptian police authorities, but he was ordered out of the police station. Afterwards, he was contacted by a Muslim extremist who knew that he had gone to the authorities for protection. The documentary evidence considered by the PCDO indicated that a police investigation into the murders of two Christians resulted in hundreds of citizens, most of them Christians, being detained, mistreated and tortured by the police. The PCDO did not doubt the applicant's credibility, and, it was unreasonable to expect the applicant to continue to seek protection. Furthermore, the PCDO failed to consider circumstances particular to the applicant - that he was a practising lawyer, and that he was in a position to know about the likelihood of obtaining protection.

[17]            The decision of the PCDO who determined that the applicant was not at risk if returned to Egypt is hereby set aside and the Court directs that a new removal risk opinion of this applicant be entertained before a different PCDO.

     JUDGE

OTTAWA, Ontario

May 7, 2002