Date: 20020820
Docket: IMM-2950-00
Neutral Citation: 2002 FCT 891
Ottawa, Ontario, this 20th day of August 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
JOHN SMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The facts of this cases are unusual and can be briefly stated. The applicant, a citizen of Egypt, and his extended family are coptic christians. He and his cousin Noha were both students at the University. One day his cousin did not come home from school. The family could not find her until an anonymous caller telephoned to say that she was in front a of mosque. When the family got there, they found Noha in a such a disturbed state that she could not tell them what happened. The family decided that Noha should not be allowed to go about alone so the applicant became her constant companion.
[2] The family began to get telephone calls inquiring about the condition of "Amina", the name which the callers had given to Noha. Then the callers began to threaten that they would regain possession of Amina and see her converted to Islam. One week after Noha's abduction, a man and a woman appeared at their house, wanting to take "Amina" with them and threatening that they would get her one way or the other. They indicated to the applicant that they would deal with him later.
[3] The applicant then began to receive anonymous calls warning him to stay away from "Amina". On one occasion, he and Noha were accosted by three men who attempted to take Noha away but as a result of Noha's cries for help and his resistance they fled. The applicant was injured. He went into hiding for a period of time. He returned home but to a different apartment but the threatening calls resumed as soon as he returned to the city.
[4] Following this, the applicant answered his door one day to find a woman who carried on as though she knew him very well. When he denied knowing her, she accused him of infidelity and said that her family would see to him. He began to receive threats that he must marry this woman and convert to Islam or be killed. After consulting with his family and the priest, it was decided that the applicant should leave Egypt. He obtained the necessary travel documents and travelled to the United States where his brother lived, staying there for approximately 3 weeks before claiming refugee status in Canada on July 25, 1999. The applicant's parents travelled with him to the United States but have since returned to Egypt. According to the applicant they have not received any further calls about him. His cousin and her family continue to remain in their home and to the applicant's knowledge, there have been no further attacks on his cousin.
[5] The applicant says he cannot return to Egypt as he fears that he will be killed by the islamic fundamentalists who were trying to forcibly recruit his cousin. The CRDD asked why he should be targeted when his cousin remains at large and in her own home. The applicant says it is because he is seen as the one who interfered in their plan so that they have now turned against him.
[6] The applicant points to a mass of documentary evidence to the effect that the Egyptian authorities provide no assistance to the coptic minority when it is persecuted by the islamic fundamentalists, even though the state is itself attempting to curb the power of the fundamentalists. Various pieces of documentary evidence reveal instances where coptic christians have been victimized by fundamentalists and have been unable to obtain any protection from the Egyptian police forces. When asked if he sought the protection of the police, the applicant says that he did not because there was no point. Their position is well known.
[7] The CRDD found that apart from one discrepancy, the applicant was "generally credible". It follows that the CRDD must have been satisfied that the applicant had a subjective fear of persecution. However, the CRDD found that the applicant's fear was not well founded. The CRDD found it implausible that the fundamentalists would continue to target the applicant when his cousin was safe in her own home. The CRDD could see no reason why the applicant should continue to be at risk since it was his involvement with the defence of his cousin which brought him to the attention of the fundamentalists. If they had lost interest in her, surely they had lost interest in him. Furthermore, if the applicant's family, who had returned to Egypt were not targeted by the fundamentalists, there was no reason to believe that he would be.
[8] This is what the CRDD said about the fact that no action has been taken against Noha and her family since the applicant's departure from Egypt:
Noha and her immediate family also remain in the very same apartment in which the Islamic fundamentalists initially sought her out. These facts lead the panel to find it completely implausible that the claimant would face a serious possibility of persecution for a convention reason- his membership in this family- should he return to Egypt.
[9] The CRDD goes on to say:
The claimant is of course asserting that he fears returning to Egypt regardless of the fate of his cousin. He alleges that because of his interference he has become a target of the fundamentalists. The panel simply does not find his claim to be well-founded.
[10] The CRDD reviewed the documentary evidence with respect to forced conversions of christians to Islam in Egypt. It noted the conclusion of a scholar whose work it found credible, Dr. Cornelius Hulsman, that there was no evidence of forced conversion of christian girls to Islam. The cases of conversion which occurred were usually in the context of a christian girl marrying a muslim and did not support the conclusion that conversion was the result of force.
[11] The applicant argues that the CRDD has completely misconstrued his claim which he says is on all fours with that of Canada v. Ward, [1993] 2 S.C.R. 689. The applicant says that the CRDD erred when it found that he was persecuted on the basis of membership in a particular social group, his extended family, and religion. He claims to be a victim of persecution on the basis of his conduct in opposing the islamic fundamentalists.
[12] Ward, it will be recalled, was a former member of the Irish National Liberation Army (INLA), a terrorist republican organization, who claimed refugee status on the basis of the inability of the British authorities to protect him from the INLA. Ward had allowed some hostages to escape rather than see them murdered, as a result of which an INLA "Court martial" sentenced him to death. It was agreed by all that the U.K. authorities could not protect Ward from the threat posed by the INLA. According to the applicant, Ward's persecution was not the result of membership in a group, but the consequence of being specifically targeted by a terrorist organization.
[13] With respect, the applicant's analysis of Ward is incomplete. It is true that the Supreme Court of Canada found that Ward's persecution was not the result of membership in a particular social group but rather a consequence of specific behaviour:
[para79] Moreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.
[14] However, this was not the end of the Supreme Court's analysis. Had it been, Ward would have been ineligible for consideration as a refugee because he was not being persecuted for one of the Convention grounds. La Forest J. pursued his analysis further and found that Ward was being persecuted on the basis of his political opinion:
[Para. 84] ...To Ward, who believes that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The fact that he did or did not renounce his sympathies for the more general goals of the INLA does not affect this. [page749] This act, on the other hand, made Ward a political traitor in the eyes of a militant para-military organization, such as the INLA, which supports the use of terrorist tactics to achieve its ends. The act was not merely an isolated incident devoid of greater implications. Whether viewed from Ward's or the INLA's perspective, the act is politically significant. The persecution Ward fears stems from his political opinion as manifested by this act.
[15] The applicant's approach to the question of the grounds for persecution allowed him to sweep aside the evidence as to the situation of his family and Noha's in Egypt as well as the documentary evidence with respect to forced conversion. His claim is that he is specifically targeted and that the circumstances of others have no implications for his likelihood of persecution.
[16] In my view, the applicant is on the horns of a dilemma. If he fears persecution purely because of his conduct, he falls outside the definition of refugee because he is not being persecuted for one of the Convention grounds. To the extent that he relies upon Ward, his reading of the case is incomplete. On the other hand, if he claims persecution by reason of religion or membership in a particular social group, his claim fails because the CRDD clearly found his allegations to be implausible and without foundation. The documentary evidence supports the CRDD's conclusion which, in any event, is not unreasonable.
[17] In argument, the applicant raised another argument based upon Ward. His position was that once the CRDD believed that he had a subjective fear of persecution, and accepted that state protection was not available to him, a presumption arose that there was an objective basis to his fear. This would be sufficient for a finding that he was indeed a Convention refugee.
[18] The applicant's argument is based upon the following passage from Ward:
[para. 45] ... Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection. The presumption is not too great a leap. Having established the existence of a fear and a state's inability to assuage those fears, it is not assuming too much to say that the fear is well founded.
[emphasis is in the original].
[19] However, La Forest J. was aware of the problem posed by irrational fears. The passage quoted above could support a finding that a person who genuinely feared that he would be abducted by aliens could make a refugee claim. His fear, by definition, is genuine. Popular literature would provide documentary evidence of persons who claim to have experienced alien abduction. It is unlikely that a state representative would come forward to give evidence that it could provide effective protection against a threat whose existence is denied by all states. One would thus be in the presence of a genuine fear of persecution and an absence of state protection. The example is absurd, but it does make the point that fear, even though genuine, may not be grounded in reality. That is the significance of the sentence which follows immediately after the passage cited above:
[para. 45] ...Of course the persecution must be real - the presumption cannot be built on fictional events - but the well-foundedness of the fears can be established through the use of such a presumption.
[20] To the extent that La Forest J. speaks of the persecution being real, he must be speaking of past events. His reasoning is that if persecution has occurred in the past, and if lack of state protection is shown, it can be presumed that persecution will occur in the future. As a result, the fear of that persecution is well founded. But La Forest J. is making the critical assumption that the future will unfold as did the past. This claim is an example of a situation where one can accept that past persecution occurred without accepting that it will continue in the future. Consequently, the presumption of well foundedness depends upon more than proof of past persecution and lack of state protection. It requires one to assume that there is no valid reason why past conduct will not be repeated in the future. That element is absent in this applicant's case.
[21] Where the CRDD funds that this is no objective basis for a fear of future persecution, the presumption of well foundedness does not apply. A presumption cannot be used to overturn a specific finding. In this case, the CRDD's conclusion as to the absence of an objective basis for the plaintiff's fear was another way of saying that it found that there were reasons to believe that the future would not follow the same course as did the past. The assumption underlying La Forest J.'s presumption was not valid on the facts of this case.
[22] To that extent, the issue is not the applicant's subjective fear since the CRDD's decision is effectively a decision that there is no objective basis for his fear of future persecution. As a result, his claim fails, whether he has a subjective fear of persecution or not. Similarly, the CRDD's conclusions as to state protection do not enter into play because there is no basis for a request for state protection or, to put it another way, there is no threat from which the applicant requires protection.
[23] For all of these reasons, the application for judicial review will be dismissed. If the parties wish to submit a question for certification, they must do so within 10 days of the date of these reasons. An order dismissing the application will issue at the end of that period.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2950-00
STYLE OF CAUSE: JOHN SMAN
Applicant
- and -
MCI
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 8, 2001
REASONS FOR [ORDER or JUDGMENT] : PELLETIER J.
DATED: AUGUST 20, 2002
APPEARANCES:
Mr. Thampiah Siripathy FOR THE APPLICANT
Mr. Stephen H. Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John M. Guoba
Barrister & Solicitor
2425 Eglinton Ave. East
Suite 211
Toronto, Ontario
M1K 5G8
Telephone No.: 416-759-4500
Fax No.: 416-759-4510 FOR THE APPLICANT
Mr. Stephen H. Gold
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Telephone No.: 416-954-0624
Fax No.: 416-954-8982 FOR THE RESPONDENT
Email this Content