Date: 20070125
Docket: IMM-1700-06
Citation: 2007
FC 90
Toronto, Ontario, January 25, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MAHER AZER FELFEL GIRGIS
(a.k.a. Maher Azer Felf Girgis)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant is an Egyptian Coptic Christian
who fears the Gamaat Islamiah and Egyptian officials from the Ministry of State
Security. He alleges persecution on the basis of his religious identity. The
Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected
his claims under section 96 and 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA) due to lack of credibility.
[2]
The applicant seeks judicial review of the
negative decision and contends that the RPD erred by ignoring, misconstruing
and misapplying evidence. I find that there are a number of deficiencies in
the RPD’s decision, one of which was fundamental to the claim. Consequently,
the application for judicial review will be allowed.
Facts
[3]
The applicant was born, raised, educated and
employed in Alexandria. Upon
the death of his uncle, he moved to Assiut where his family owned farmland. He
claims to have been active in the Church of St. Michael in
Assiut, specifically by volunteering with the Sunday school, outreach programs
for the poor, and youth counselling. The applicant learned that Ashraf Wadi
Kirollos (Ashraf), a boy in the youth group, had been persuaded to convert to
Islam. Over a two-week period, the applicant visited Ashraf several times and
eventually succeeded in convincing him to return to the church. Near the end
of this period, the applicant began to suspect that he was under surveillance.
He was warned by a priest and other members of his community that he was being
“followed and watched by members of the fundamentalist Islamic organizations”.
He believed this organization to be the Gamaat Islamia.
[4]
Shortly thereafter, his car was set on fire.
The applicant reported the incident to the police in Assiut and was told that
the matter would be investigated. Upon returning home, he found that his
apartment had been vandalized, although nothing was stolen. The following day,
he learned that someone had poisoned his family farmland with chemicals. He
returned to the police station to make a report. The police informed him that
there were witnesses who claimed to have seen him set fire to his own car.
[5]
The applicant claimed that his priest advised
him that a Fatwa had been issued against him for his involvement in “converting
a so-called Muslim to Christianity”. The priest recommended that he leave
Assiut as soon as possible. The applicant, his wife and son immediately fled
to Alexandria. The next day,
he went to the State Security Service to report what had happened in Assiut.
[6]
One day later, four members of the State
Security came to his residence and insisted that he accompany them to their
government offices to discuss his report. The applicant was placed in a small
room and was “badly beaten”. He was told that he “could be jailed for five to
seven years because he had converted a Muslim”. He was accused of “conspiring
to convert other Muslims”. After spending several hours in detention, he was
released upon payment of a substantial sum of money.
[7]
A Muslim lawyer (contacted by his brother) told
the applicant that the State Security had communicated with the police in
Assiut and were informed of the allegation that he had set his car on fire.
Additionally, Muslim men in Assiut had lodged complaints about the applicant’s
involvement in Ashaf’s conversion back to Christianity.
[8]
A few days later, while the applicant was
seeking employment, State Security officers visited his residence a second
time. Upon learning of this, he hid at a friend’s house. He obtained a job
where he was “not known” and worked as a “director of purchasing” until April
of 2005 when he came to Canada
on a business trip. He made his claim for refugee protection on April 18,
2005. He alleged that the State Security had continued to visit his family in Alexandria inquiring into his whereabouts.
He claimed that his wife and son had gone into hiding out of fear of the
government and the members of the Gamaat Islamia.
The Decision
[9]
The hearing was conducted over three hearing
dates: August 16, 2005, October 18, 2005 and October 28, 2005. The RPD found
that the applicant’s testimony was vague and confusing. It enumerated various
inconsistencies and implausibilities in the applicant’s evidence. It
acknowledged that some of the inconsistencies were not “core to the claim”.
The RPD concluded :
One or two of such
examples as set out above may be excused
because no
testimony is perfect, but with so many inconsistencies
and vague responses
in the aggregate, I find that the claimant is
not generally
credible. In light of this finding, I find that the
story of Ashraf,
which is the core of the claim, is not credible.
Since I find that
the Ashraf story is not credible, then the
claimant’s stated
fears are not well-founded.
Issue
[10]
The applicant asserts that a number of the
credibility findings were patently unreasonable and that the RPD erred by
ignoring, misconstruing and misapplying the evidence.
Analysis
[11]
In Ratheeskumar v. Canada (Minister of Citizenship and
Immigration) (2002), 25 Imm. L.R. (3d) 280
(F.C.T.D.), I summarized the principles relevant to credibility determinations
of the former Convention Refugee Determination Division (CRDD), now the RPD.
At paragraph 5, I stated:
¶ 5
The CRDD, a specialized tribunal, has complete jurisdiction to determine the
plausibility of testimony. It is in the best position to gauge
credibility and to draw necessary inferences. As long as the
inferences are not so unreasonable as to warrant intervention, the Court will
not intervene: Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The
CRDD is entitled to decide adversely with respect to a claimant's credibility
on the basis of inconsistencies in the evidence including inconsistencies
within the oral testimony, between the oral testimony and the written narrative
and regarding the oral testimony, the written narrative and other evidence
before it: Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F. C. 238 (C.A.); Leung v. Canada (Minister of Employment and
Immigration) (1990), 129 N.R. 391 (F.C.A.). A negative decision
regarding credibility must be stated in clear and unmistakable
terms: Moreno v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), but
the panel is entitled to rely on criteria such as rationality and common
sense: Shahamati v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No 415 (C.A.). The CRDD cannot ignore
evidence explaining apparent inconsistencies and then make an adverse
credibility finding: Owusu-Ansah v. Canada (Minister of
Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). If the
panel makes a finding of fact having misconstrued or ignored relevant evidence
before it and relies on those findings when making an adverse finding as to
credibility, the decision is unreasonable and warrants
intervention: Lai v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 906 (C.A.).
[12]
The applicant has microscopically dissected the
credibility findings. Because there is a fundamental error in the RPD’s
analysis, I need not review all of the findings with which the applicant takes
issue.
[13]
At page 7 of its reasons, the RPD stated that
“[as] a result of the lacunae in the documentary evidence, I find that the
claimant is not the active Coptic Christian engaged in the process of
re-converting a wayward son of the Church as he claims he is”. The RPD
identified the claim in the following terms:
The core of his
claim is not that he is a Copt, but that he is an
active Coptic, who
taught Sunday School, assisted with social
work for the church
and, most importantly for this claim, that
he assisted in the
attempted re-conversion of one specific youth
who had converted
from Christianity to Islam.
[14]
The RPD took exception to the fact that the
applicant did not produce corroborative evidence regarding his efforts in
relation to Ashraf. At page 9 of its reasons, it stated:
Given the
importance of his religious work, particularly with respect
to the youth,
Ashraf, one would have expected the claimant to supply
not only his
baptismal certificate, but also a letter from his church,
corroborating his
religious identity and aspects of the Ashraf matter
known to the church
fathers. At the sitting of October 18, 2005, the
RPO spent a
considerable amount of time asking the claimant why,
with all the other
material from Sami, he did not have a church letter
or documents
regarding Ashraf.
[15]
This statement is problematic for a variety of
reasons. At the beginning of the hearing on October 18th, the RPD
accepted a number of documents into evidence (exhibit C-12) including a letter
from the applicant’s church. The letter is from a priest of the Church of Angel Michael in Assiut and
attests to the applicant’s identity as a Coptic Christian, his activities in
the church and his involvement in the Ashraf matter. The RPD stated that “at
the sitting of October 18, 2005, the RPD spent a considerable amount of time”
asking the applicant why he did not have such a letter. The transcript does
not accord with this statement. While there was a peripheral discussion
regarding Ashraf on October 18th, it related to his death and when
the applicant learned of it. There was no discussion regarding the letter.
[16]
The exchange as to why the applicant did not
produce corroborative evidence actually occurred on August 16th.
Presumably, as a result of that exchange, a number of documents were tendered
on October 18th. These documents had not been disclosed in
accordance with the requirements of the rules and it was therefore open to the
RPD to reject them. However, the RPD did not reject the documents. Rather, it
stated “[b]ecause of their relevance I will admit them” (transcript, tribunal
record at p. 432).
[17]
To complicate matters, at page 10 of its
reasons, the RPD stated:
The
claimant disclosed documents at the last sitting that he had not
been
able to obtain before. In fact, at previous sittings when asked
about
the fact that he did not have a corroborating letter from the
church
or police reports, the claimant gave elaborate reasons as to
why
such documents were unobtainable. In light of this late
unexplained
disclosure after much was made of their absence at a
previous
sitting, I cannot assign these documents with sufficient
weight
to offset my other credibility concerns.
[18]
The RPD clearly misapprehended the situation.
The documents were disclosed and admitted at the second sitting (including the
police reports). A significant number of the “other credibility concerns” were
properly identified by the RPD as not central to the claim. The letter from
the church went to the crux of the claim. Therefore, although it was open to
the RPD to assign little weight to the document, it could not do so on the
basis of erroneous reasoning. The RPD cannot claim on the one hand that there
was no corroborative evidence and, on the other hand, acknowledge its
existence.
[19]
In my view, this error goes to the very heart of
the claim and is sufficient to warrant intervention. However, if I am mistaken
in this regard, there are other aspects of the decision that are problematic.
[20]
Regarding the police reports, the RPD concluded
that “[t]he claimant did not complain to the Assiut police regarding an
incident in their jurisdiction, but to the Alexandria police. He explained he did so because of his fear of the Muslim
extremists. I do not accept this explanation”. I have carefully reviewed the
PIF and the transcript. When regard is had to both, it is evident that,
according to the applicant, he complained to the police in both Assiut and in Alexandria and that he did so in relation
to all three incidents. Moreover, the applicant did not provide the noted
explanation. While it was open to the RPD to disbelieve the applicant, it was
an error, based on a misapprehension of the evidence, to reject an explanation
that had not been provided.
[21]
The RPD, at page 4 of its reasons, determined
that “[i]f the claimant’s religious activities were to be believed, especially
with respect to the youth, Ashraf, then I would find that there would be a
reasonable chance of serious harm at the hands of Muslim extremists without
adequate state protection”. Yet, at page 8 of the reasons, it found that
“[t]he problem that the claimant alleges he is exposed to is not found in the
literature”. There is no explanation for this internal inconsistency.
[22]
Further misapprehension of the evidence occurred
in relation to the issue of the “bribe/bond”. The RPD stated that “the
claimant never did explain why he used the concept of an illegal bribe in his
PIF narrative, if the release was secured by means of a legal condition bond”.
In fact, this subject was raised and canvassed extensively at the hearing on
October 18th (transcript, tribunal record pp. 438-442) and was
discussed again on October 28th (transcript, tribunal record p.
493). The applicant did provide an explanation. While the RPD was entitled to
find the explanation implausible, it is erroneous to say that he “never
provided an explanation for the inconsistency”.
[23]
Counsel for the respondent valiantly argued in
defence of the decision by providing various reasons (not contained in the
decision) as to why the RPD could have decided as it did. Had the RPD
articulated its reasons in the same fashion, in all likelihood, the decision
would be unassailable. However, the explanation and analysis for the decision
must be found to exist within the reasons of the decision maker.
[24]
A finding based upon misconstrued or ignored
evidence and relied upon as a basis for a credibility finding is unreasonable
and warrants intervention. The misapprehension of the evidence is such that
the decision must be set aside. Counsel did not suggest a question for certification
and none arises.
ORDER
THIS COURT ORDERS THAT the
application for judicial review is allowed and the matter is remitted to a
differently constituted RPD for determination.
“Carolyn Layden-Stevenson”
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