Date: 20071120
Docket: IMM-5700-06
Citation: 2007 FC 1216
Ottawa, Ontario, November 20, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OSSAMA KAMAL KAMEL GHALY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Ossama
Kamal Kamel Ghaly is a Coptic Christian and a citizen of Egypt who left Egypt
in January of 2000. After living for just over three years in the United
States, he came to Canada on March 24, 2003. At that time, he made a claim for
refugee protection. After the Refugee Protection Division of the Immigration
Refugee Board (RPD) declared his refugee claim to be abandoned, Mr. Ghaly
applied for a pre-removal risk assessment (PRRA). This application for
judicial review is brought in respect of the decision of the PRRA officer that
Mr. Ghaly falls within neither the definition of a Convention refugee nor
the definition of a person in need of protection.
[2] In
reaching her decision, the PRRA officer found that: (i) while there is evidence
that Coptic Christians are discriminated against in Egypt, such conduct does
not amount to persecution; and (ii) Mr. Ghaly had not rebutted the presumption
that state protection was available to him in Egypt.
[3] This
application for judicial review of that decision is allowed because the officer
erred in law by failing to consider that Mr. Ghaly had suffered persecution in
the past and erred in law when she applied the test to determine the existence
of state protection. Both errors of law are reviewable on the standard of
correctness.
[4] At
the outset, it is important to recognize that Mr. Ghaly’s situation before the
officer was affected in two respects by the fact that the merits of his refugee
claim had not been considered by the RPD.
[5] First,
Mr. Ghaly was not restricted by subsection 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), in the evidence he
could present to the officer.
[6] Second,
no prior decision had been made with respect to the credibility of
Mr. Ghaly’s evidence. The information put before the officer, all of it
being “new” evidence within the meaning of subsection 113(a) of the Act,
was central to the decision as to protection and, if accepted, would justify
allowing the application for protection. The officer did not require Mr. Ghaly
to attend a hearing, which the officer would likely have had to do if, in her
view, the information he provided raised a serious issue with respect to his
credibility. See: Section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (Regulations), and subsection 113(b)
of the Act. (Section 113 of the Act and section 167 of the Regulations are set
out in the appendix to these reasons). Indeed, it appears that the officer
accepted the truth of the information provided by Mr. Ghaly, as I believe she
was obliged to do, because she did not require Mr. Ghaly to attend a hearing.
[7] The
information provided by Mr. Ghaly was that in 1998 he had been threatened and
attacked with knives between 10 and 15 times by members of the Gamaat Islamia
because he was counselling a fellow Christian, who was tempted to convert to
Islam, and because he would not convert to Islam. In 1999, Mr. Ghaly’s family
was attacked in their home by five men, who Mr. Ghaly described as fundamentalists
that were looking for him and threatening to kill him. Mr. Ghaly’s parents and
sisters were beaten, and their home and its contents were damaged. His father
went to the police after this attack, but the police refused to take his
report. The family then went to live with relatives. After Mr. Ghaly’s
attackers learned where he was then living, he obtained a visa for the United
States and left Egypt in January of 2000. Since Mr. Ghaly left Egypt,
fundamentalists have continued to look for him, issued threats on his life, and
said that they would be waiting for his return.
[8] Having
decided not to hold a hearing, but rather to accept the information that
Mr. Ghaly provided, the following consequences flow at law.
[9] First,
as very fairly and properly conceded by counsel for the Minister, the officer
erred in law by failing to consider that Mr. Ghaly had been persecuted in the
past by members of the Gamaat Islamia on the basis of his religion. As my
colleague Justice Tremblay-Lamer wrote in N.K. v. Canada
(Solicitor General), [1995] F.C.J. No. 889 at paragraph 23:
The factual situations which the courts have found
to constitute persecution generally involve acts of violence which are often
accompanied by death threats. A series of such hostile acts over a long period
of time, often affecting the claimant's physical safety, clearly cannot be
described simply as discriminatory. [translation]
[10] This
error rendered irrelevant the officer’s analysis that the treatment generally
afforded to Coptic Christians in Egypt amounts to discrimination and not
persecution.
[11] Second,
the leading authority with respect to the existence of state protection is Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689. At paragraph 50, the
Court explained, in the following terms, how a claimant might establish a lack
of state protection:
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. Absent some evidence, the claim should fail, as
nations should be presumed capable of protecting their citizens. Security of
nationals is, after all, the essence of sovereignty. Absent a situation of
complete breakdown of state apparatus, such as that recognized in Lebanon
in Zalzali, it should be assumed that the state is capable of protecting a
claimant. [emphasis added]
[12] With
respect to the issue of state protection, the officer dismissed the relevance of
Mr. Ghaly’s evidence about past incidents because Mr. Ghaly did not
mention whether the knife attacks were reported to the police. The officer concluded
that Mr. Ghaly had not met the duty upon him to seek state protection. In the
circumstances before me, in the absence of evidence or submissions made to the officer
either that Mr. Ghaly sought protection or that he was not required to
seek such protection because protection would not likely have been forthcoming,
I am not prepared to find that the officer’s conclusion constituted an error.
[13] The
officer went on to consider the evidence before her with respect to individuals
similarly situated to Mr. Ghaly, as she was obliged to do in view of the length
of time that had elapsed since Mr. Ghaly left Egypt. There, however, the
officer erred in law by failing to recognize that, on the basis of Mr. Ghaly’s
evidence, he was similarly situated to Coptic Christians who were targeted by
religious extremists and who had been persecuted in the past. By only
considering the situation of Coptic Christians in general, the officer erred in
law by misapplying the test for state protection articulated in Ward,
cited above. This error was material in view of the documentary evidence
available to the officer that “Egypt treats its Coptic Christian minority as
second-class citizens, and is rather less than vigilant about protecting
them from attack by Islamic extremists”. See: Response to Information
Request, EGY42414.FE “The treatment of Christians and state protection
available to them (1999-February 2004)”.
[14] For
these reasons, the application for judicial review is allowed. Counsel posed
no question for certification, and I agree that no question arises on this
record.
[15] In
closing, I note that the Court was much assisted on this application for
judicial review by the excellent submissions of Mr. Knapp, on behalf of the
Minister, and Ms. Desloges, on behalf of Mr. Ghaly.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the pre-removal risk assessment officer dated September 28, 2006 is
hereby set aside.
2. The matter is remitted for redetermination by a different
officer in accordance with these reasons.
“Eleanor R. Dawson”
APPENDIX
Section 113 of the Act and section
167 of the Regulations read as follows:
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113. Consideration
of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada.
[…]
167. For the purpose of determining
whether a hearing is required under paragraph 113(b) of the Act, the
factors are the following:
(a) whether there is evidence that raises a
serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the
decision with respect to the application for protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for
protection.
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113. Il est
disposé de la demande comme il suit :
a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire
pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait
que la demande devrait être rejetée en raison de la nature et de la gravité
de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
[…]
167. Pour
l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
a) l’existence d’éléments de preuve relatifs aux éléments
mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question
importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de
la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à
supposer qu’ils soient admis, justifieraient que soit accordée la protection.
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