Date: 20080117
Docket: IMM-6085-06
Citation: 2008 FC 60
Ottawa, Ontario, January 17, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GEORGE REDA KAMEL BADAWY
ABRAHAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
George
Reda Kamel Badawy Abraham (the “applicant”), is 29 years of age, a citizen of
Egypt and a Coptic Christian who sought refugee status in Canada because of his
fear of Islamic Fundamentalists in his country of nationality but was refused
recognition by decision dated November 15, 2006 of a member of the Refugee
Protection Division (the “tribunal”) who did not believe his story finding him
not credible for several reasons. It is this decision the applicant seeks to
set aside in his judicial review application. At the tribunal’s hearing, he was
not represented by legal counsel or by a consultant.
[2]
His
story may be summarized as follows. The applicant is a civil engineer who
alleges since 2003, he supervised mostly on each Friday the completion of the interior
construction of a Coptic church in Bachom, the village in which he resided,
which has very few homes all of them occupied by Coptic Christians. This
village is a two hour car drive from Cairo. According to a
photograph in the record, the building being constructed does not look like a
church; it was designed to look as a guest house. Its construction began in 2001
and was completed in time for the Easter service in 2005. Its construction had
been interrupted prior to 2003 because the person who oversaw the building had
been threatened and his car vandalized.
[3]
He
testified the Islamic Fundamentalists, who resided in the same apartment
building as he did in Cairo, found out it was a church when the Easter
services were held in 2005. In August 2005, he alleged he was attacked and
kidnapped by the Islamic Fundamentalists but released through the intervention
of an influential member of the Muslim Brotherhood who was persuaded through an
intermediary friend of the family to intervene to obtain his release from
captivity. After his release, he obtained medical treatment for his injuries.
It was the member of the Muslim Brotherhood who recommended to the Abraham
family the applicant flee Egypt. He arrived in Canada on October
1, 2005 making a refugee claim on October 3, 2005. In Canada, he was
reunited with his brother who had obtained landed immigrant status as a
pharmacist prior to the applicant’s arrival.
The tribunal’s decision
[4]
As
noted, the tribunal based its decision on the lack of the applicant’s
credibility for which it gave a number of reasons which may be summarized as
follows:
(a) Under
Section 96 of IRPA
(1) The
applicant’s identity as a civil engineer was not established: The tribunal concluded
that he had not studied to be a civil engineer because he only presented a
“temporary certificate”, he listed his highest education as “B.Sc.”, and when
asked what he would do as a civil engineer, he made no mention of plans,
drawings, or permits which the tribunal found implausible. The tribunal found
he had not studied to be an engineer.
(2)
The applicant had no documents linking him with the church in Bachom:
The applicant stated he had no documents linking him with the church in Bachom.
He had, however, presented a letter from a Bishop indicating he had helped in
supervising a contruction of a church, but it did not mention the name of the
church or its location. He also did not present any news articles regarding the
church in Bachom. The tribunal found, due to lack of such documents, he was not
linked to the alleged church.
(3) The
person who donated the land for the Bachom church had no problems: The applicant
stated Bachom is a village with very few homes and all are Coptic Christians.
The person who donated the land for the church, a Coptic Christian, lives
beside the church building, yet he did not have any problems. The tribunal
found that it is implausible that the person who donated the land for the
church has not been harmed “whereas the claimant has a fear of return”.
(4) The discovery of
the building as a church: The tribunal said the applicant was asked if he
had been involved in the project since 2003 and if the Islamic Fundamentalists
who allegedly kidnapped him in 2005 had lived in the same building. The
tribunal wrote: “He started to testify that it was because the Easter service
was held in 2005. The panel does not find it plausible that, indeed the Islamic
Fundamentalists knew that the building was being constructed by the previous
engineer why wait until 2005?”
(5) The
delay in harming the applicant: It was not plausible that the Islamic Fundamentalists
would wait until 2005 to harm the applicant if he was involved with the Bachom
church construction in 2003.
(6) Pictures
of the Bachom church: The pictures the applicant presented of the exterior
of the Bachom church did not identify it as a church and it seemed to be very
big for the use of only a few villagers. The tribunal further found the picture
did not indicate the church was in Bachom. The tribunal also found the
photograph of the inside of the church could be from any church since there are
many churches in Egypt and “Coptic Christians do practice their
faith”.
(7)
No
report to the police: The August 2005 incident in which he was kidnapped
and assaulted was not reported to the police. The tribunal said the applicant
indicated he did not report because he would get no help from government individuals
who had helped them before.
(8)
The
applicant’s family had no problems: The applicant’s family, which is
well-to-do and well known, have not suffered any consequences and continue to
work and live in the same area. After reciting points (7) and (8) above, the
tribunal wrote: “The panel does not find his testimony credible and finds he
has not established a well-founded fear.”
(9)
The
lack of corroboration: There was nothing to corroborate the applicant’s
kidnapping and detention. For example, there was no affidavit from the guard
for the building whom the applicant had indicated in his PIF had told his
parents he saw the applicant with two men. The tribunal added: “There was no
affidavit from the guard, though the claimant states his father sent him all
the documents he presented.”
(10) Delay: The applicant
waited one month before making his refugee claim.
(b) Under
Section 97 of IRPA
(11) The
general treatment of Coptic Christians in Egypt: Coptic
Christians make up 10% of Egypt’s population of 72 million. They have
freedom of belief and practice under the Constitution, with some restrictions,
and because their practice does not conflict with Shari’a law, they worship
without harassment. Coptic Christians do not face the risk of harm envisioned
by section 97 of IRPA.
(12) There
was no evidence of any specific, personal risk: Although sectarian violence
arises from time to time, it was not personal to the applicant as a Coptic
Christian.
[5]
Moreover,
the applicant presented medical documents to support the fact he was injured
when allegedly detained by the Islamic Fundamentalists. The tribunal ruled,
however, these documents would be accorded no weight because his testimony was
found not to be credible. The tribunal concluded they were obtained for his
refugee claim.
The position of the
parties – the acknowledged errors
[6]
Counsel
for the respondent, in his memorandum, agreed the evidence could not support
two of the tribunal’s credibility findings: 1) that the applicant was not a civil
engineer (point # 1) and, 2) that he delayed one month before making his
refugee claim in Canada (point # 10). Counsel for the respondent also
agreed that the tribunal’s credibility decision not to have regard to the
medical documents could not stand if the Court held the remaining credibility
findings were patently unreasonable.
[7]
In
argument, counsel for the applicant did not challenge or qualify a number of
the tribunal’s findings:
· He did not
challenge the fact the pictures of the exterior of the Bachom church did not
identify it as a church and it seemed to be very big for the use of only a few
villagers (point # 4).
· He did not
challenge (point # 7) the fact there was no police report of the August 2005
incident but he argued it could not serve as the basis for the tribunal
disbelieving the applicant because approaching the police had no purpose since
he acted on the recommendation of the Muslim Brotherhood member to flee the
country.
· Counsel did
not challenge the fact the applicant’s family did not have any problems from
the applicant’s persecutors (point # 8).
[8]
He
argued the findings of (1) the lack of corroboration of the applicant’s
detention and kidnapping (point # 9), (2) no evidence of any specific
personalized risk (point # 12) and (3) the general treatment of Coptic
Christians in Egypt (point no. 11) were either not relevant or logically fell
by the way side if the tribunal erred in not believing the applicant’s story.
[9]
With
the two concessions made by counsel for the respondent that the evidence showed
the applicant was a civil engineer and had not delayed making his claim when he
arrived in Canada, the applicant’s counsel concentrated on the following
findings of the tribunal which he argued were drawn in error by misreading the
testimony given, the documents produced or by the tribunal not being sensitive
to the fact the applicant was unrepresented at the hearing before the tribunal:
(1)
No
supporting document linking him with a church in Bachom (point # 2). He argued
the applicant had produced one such document;
(2)
While
not contesting the finding the person who donated the land for the Bachom
church had no problems (point # 3), the tribunal ignored the applicant’s
testimony as to why this was the case;
(3)
The
tribunal’s finding when the Islamic Fundamentalists discovered the building was
a church (point # 4). Once again, applicant’s counsel argues the tribunal
ignored his evidence;
(4)
While
conceding the applicant did not go to the police to report his kidnapping and
abuse, the tribunal drew an unreasonable inference and ignored his evidence why
that was so (point # 7).
[10]
The
essence of the applicant’s submission on the remaining credibility grounds was
that the tribunal erred by misinterpreting the evidence, or ignored it or did
not have due regard to the fact he was not represented by counsel.
[11]
The
applicant’s counsel raised another error committed by the tribunal albeit not
one related to the applicant’s credibility. Applicant’s counsel states the
record shows the tribunal refused to hear the applicant’s brother as a witness
and that this was a breach of procedural fairness.
Analysis
Standard of review
[12]
Counsel
for both parties were of the view the standard of review with respect to the
issues raised in this judicial review application is patent unreasonableness; I
agree. It is settled law that credibility findings are findings of fact.
Section 18.1(4)(d) provides as a ground to grant relief where a federal
tribunal 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” which is equivalent to the standard of review of patent unreasonableness.
[13]
In
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Justice
Iacobucci described at paragraph 52, a patently unreasonable finding is one
which is “clearly irrational” or evidently not in accordance with reason, so
flawed that no amount of curial deference can justify letting it stand. In Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
[2004] 1 S.C.R. 609, Justice Major wrote: “A definition of patently unreasonable is difficult, but it
may be said that the result must almost border on the absurd.”
[14]
In
this connection, I refer to the Supreme Court of Canada’s decision in C.U.P.E,
local 301 v. Montreal (City), [1997] 1 S.C.R. 793 where Justice L’Heureux-Dubé
wrote at paragraph 85 as follows:
85 We must remember
that the standard of review on the factual findings of an administrative
tribunal is an extremely deferent one: Ross v. New Brunswick School District
No. 15, [1996] 1 S.C.R. 825, per La Forest
J., at pp. 849 and 852. Courts must not revisit the facts or weigh the
evidence. Only where the evidence viewed reasonably is incapable of supporting
the tribunal's findings will a fact finding be patently unreasonable. An
example is the allegation in this case, viz. that there is no evidence at all
for a significant element of the tribunal's decision: see Toronto Board of
Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per
McLachlin J. Such a determination may well be made without an in-depth
examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[15]
Justice
Décary in Aguebor v. Minister of Employment and Immigration, [1993]
F.C.J. No. 732 (FCA) wrote the following in respect of plausibility findings at
paragraph 4:
4 There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review. In Giron, the Court merely observed that in the area of plausibility,
the unreasonableness of a decision may be more palpable, and so more easily
identifiable, since the account appears on the face of the record. In our
opinion, Giron in no way reduces the burden that rests on an appellant, of
showing that the inferences drawn by the Refugee Division could not reasonably
have been drawn. In this case, the appellant has not discharged this burden.
[16]
After
considering the arguments, having reviewed the transcript, the applicant’s
personal information form and his affidavit in support of this judicial review
application, it appears to the Court that the heart of the applicant’s case is
that the evidence on the record does not support the credibility findings the
tribunal drew; it is argued the tribunal ignored the evidence or misread it.
[17]
Counsel
for the applicant points to the fact counsel for the respondent already
admitted the tribunal erred when it conceded the evidence could not support the
tribunal’s finding he was not an engineer; the same can be said of its finding on
the applicant’s delay in making his refugee claim.
[18]
In
particular, counsel for the applicant argued the error the tribunal made when
it did not believe he was an engineer was significant and symptomatic of the
tribunal’s flawed approach in this case, namely, that it was too quick to draw
inferences and made implausibility findings which were based on assumptions not
supported in the evidence.
[19]
I
am of view there is merit to the applicant’s argument; the tribunal made
significant errors in respect of the following findings which warrant the
Court’s intervention and coupled with the admitted errors lead me to the
conclusion the tribunal’s decision must be set side.
[20]
First,
in my view, it was unreasonable and arbitrary for the tribunal to draw the
conclusion the applicant was not kidnapped, assaulted and threatened because
neither the applicant nor his family reported the incident to the police. This
conclusion ignores the evidence he was freed by his captors through the
intervention of the influential member of the Muslim Brotherhood who advised
the applicant and his parents he should leave the country because the Muslim
Brotherhood member could not further intervene to protect the applicant.
[21]
Second,
the evidence in the record indicates his persecutors were Islamic Fundamentalists
who resided in the same apartment building in Cairo where he
lived in his parents’ apartment when going to University and after graduation. The
evidence shows that certain Islamic Fundamentalists in and around Bachom which
as noted is a two hour drive from Cairo had been aware of the
church’s construction between 2001 and 2003 and had threatened the first
engineer who had supervised the construction of the exterior of the church. The
applicant’s involvement in 2003 to 2005 was to drive from Cairo to Bachom
mainly on Fridays to supervise the interior finishing of
the church. The tribunal simply assumed the
applicant’s persecutors were the same persons who threatened the first engineer
and led to the tribunal’s conclusion his perpetrators knew a church was being
constructed in Bachom leading it to disbelieve the applicant. There is no
evidence in the record to support this imputed knowledge by those who kidnapped
him which was critical to the tribunal’s determination of why his persecutors
acted in August 2005 to harm him after the Easter services were performed in
Bachom in a building that was not designed and did not look like a church.
[22]
Third,
the tribunal came to the view the applicant was not linked to the church due to
the lack of two documents. The first document mentioned was the letter put in
evidence from the Bishop of El-Sharkiya dated September 25, 2005 stating the
applicant: “Served the church by supervising the construction work in the
church.” The tribunal concluded this letter was defective because the name of
the church was not mentioned in the letter. The other document mentioned by the
tribunal was the lack of news articles about the church, as well. The tribunal
found that: “Due to lack of such documents, he was not linked to this alleged
church.” I find the tribunal’s conclusion patently unreasonable. First, at page
273 of the certified tribunal record, he was asked whether the village of Bachom had
a newspaper to which the applicant answered: “Just a small village for farmers.”
Taken in context, the applicant’s answer was no. In terms of the Bishop’s
letter the tribunal found it defective because the name of the church was not mentioned
in the letter. The tribunal’s conclusion cannot stand because the applicant
explained the church was licensed as a building affiliated to the bishopric of
El Sharkiya. The tribunal ignored this evidence.
[23]
These
errors by the tribunal coupled with the admitted ones are sufficient, in my
view, to infirm the tribunal’s central conclusion the applicant did not bring
forth any credible evidence to back up his fear of persecution. These errors
are significant and are central to the tribunal’s determination. The tribunal’s
decision cannot be left to stand.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that this judicial review
application is allowed, the tribunal’s decision is set aside and the
applicant’s claim is remitted to the Refugee Protection Division for
redetermination. No certified question was proposed.
“François
Lemieux”
_______________________________
Judge
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