Docket: IMM-1161-15
Citation:
2015 FC 1003
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 25, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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WALEED KANDEL
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
AND
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application pursuant to the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) for judicial review
of a decision in which a pre-removal risk assessment (PRRA) officer refused the
applicant’s application for protection.
II.
Facts
[2]
The applicant is a 40-year-old citizen of Egypt
who fears persecution in Egypt by reason of his homosexuality, his conversion to
Christianity and his imputed political opinion.
[3]
The applicant arrived in Canada on September 11,
2013, and an exclusion order was issued against him that same day. Thus, the
applicant was unable to file a refugee protection claim with the Immigration
and Refugee Board (IRB).
[4]
The applicant filed a PRRA application on
September 16, 2013, and that application was refused on October 17, 2013.
[5]
The refusal of his PRRA application was the
subject of a judicial review, which was allowed by Justice Simon Noël of the
Federal Court on July 7, 2014.
[6]
The applicant sent additional documents and
submissions to the PRRA officer on September 5, September 22, and October 29,
2014. Among the documents submitted was a letter from the applicant’s attending
physician attesting to a diagnosis of post‑traumatic stress and
depression, and to the finding of scars from the attack on the applicant. Other
additional documents submitted included an affidavit from an intervener, a
psychology report, a letter from a social worker, as well as letters from five
reverends and one musical director of the Presbyterian Church.
[7]
A hearing was held before the PRRA officer on
January 21, 2015, and it lasted the whole day.
[8]
Written submissions were filed the day after the
hearing in support of the applicant’s fear of persecution concerning his conversion
to Christianity, his sexual orientation and his imputed political opinion. The
applicant also submitted additional documents describing the human rights
situation in Egypt.
[9]
On February 26, 2015, the PRRA application was refused.
This is a judicial review of the latter decision.
III.
Impugned decision
[10]
Following an exhaustive analysis of the
applicant’s testimony and the evidence in the record, the PRRA officer found
the applicant not credible:
After careful consideration of the evidence,
submissions and oral testimony, I am not persuaded, on the balance of
probabilities, as to the credibility of the applicant. The applicant lacked
general credibility and that this lack of credibility extends to all of the
applicant’s testimony.
Several significant inconsistencies [were]
identified in the applicant’s testimony and evidence, for which a reasonable
explanation was not satisfactory. The applicant demonstrated an excellent
ability to adapt by adjusting his testimony with ease both during and after the
hearing. Based on the numerous inconsistencies and improbabilities, I find the
applicant’s allegations not credible and conclude that his story was fabricated
to obtain protection.
That said, for [all the] reasons above, I
conclude that the applicant is not genuine Christian. In addition, the
applicant has not demonstrated more than a mere possibility, nor has he
established on a balance of probabilities that he would be perceived as a
Christian convert if he returned to Egypt.
For all the reasons mentioned above, I
conclude that the applicant is not homosexual. I am not satisfied that the
applicant was involved in homosexual relationships or activity prior to his
arrival in Canada or that he would pursue a homosexual lifestyle or activity if
he returns to Egypt.
As a result, I am not satisfied that the
applicant is being sought by his family or the authorities for his sexuality or
religious conversion as he alleges.
. . .
After examining the applicant’s PRRA
application, information on file, as well as the country conditions, I conclude
that the applicant has not demonstrated more than a mere possibility of being
subjected to persecution as per section 96 of the IRPA, nor has the applicant
established on a balance of probabilities that he risks torture or cruel or
unusual treatment or punishment as per section 97 of IRPA. Consequently,
the application is refused.
(Decision of the PRRA officer, Applicant’s
Record, at pp 29 and 30)
IV.
Statutory provisions
[11]
The relevant provisions of the IRPA that deal
with PRRA applications are as follows:
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Application for protection
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Demande de protection
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112.
(1) A person in Canada, other than a person referred to in subsection 115(1),
may, in accordance with the regulations, apply to the Minister for protection
if they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
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112. (1) La personne se trouvant au
Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux
règlements, demander la protection au ministre si elle est visée par une
mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe
77(1).
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Consideration of application
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Examen de la demande
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113.
Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande
comme il suit :
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(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;
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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;
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(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
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b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
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(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
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c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
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(d) in the case of an applicant described in subsection
112(3) — other than one described in subparagraph (e)(i) or (ii) —
consideration shall be on the basis of the factors set out in section 97 and
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d) s’agissant du demandeur visé au
paragraphe 112(3) — sauf celui visé au sous-alinéa e)(i) ou (ii) —,
sur la base des éléments mentionnés à l’article 97 et, d’autre part :
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(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
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(i) soit du fait que le demandeur interdit de territoire pour
grande criminalité constitue un danger pour le public au Canada,
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(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; and
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(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;
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(e) in the case of the following applicants, consideration
shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or
(ii), as the case may be:
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e) s’agissant des demandeurs ci-après,
sur la base des articles 96 à 98 et, selon le cas, du sous-alinéa d)(i)
ou (ii) :
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(i) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction in Canada
punishable by a maximum term of imprisonment of at least 10 years for which a
term of imprisonment of less than two years — or no term of imprisonment —
was imposed, and
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(i) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité au Canada pour une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et
pour laquelle soit un emprisonnement de moins de deux ans a été infligé, soit
aucune peine d’emprisonnement n’a été imposée,
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(ii) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction of an offence
outside Canada that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of imprisonment of at
least 10 years, unless they are found to be a person referred to in section F
of Article 1 of the Refugee Convention.
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(ii) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité à l’extérieur du Canada pour une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans, sauf s’il
a été conclu qu’il est visé à la section F de l’article premier de la
Convention sur les réfugiés.
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V.
Issues raised
[12]
The applicant provides the following reasons in
support of his application for judicial review:
(a)
The officer erred in his assessment of the fear
of persecution based on the applicant’s conversion;
(b)
The officer erred in his assessment of the fear
of persecution based on the applicant’s sexual orientation;
(c)
The officer erred in his assessment of the
applicant’s credibility.
VI.
Analysis
[13]
The PRRA officer’s decision is entirely
reasonable. After analyzing all of the documents, the applicant’s written, oral
and visual evidence of which demonstrates that the very crux of the account fails
as a result of the applicant’s major contradictions, a clear, precise and
unambiguous lack of credibility flows from the deficiencies and lack of any
inherent logic of his case.
[14]
In his analysis, the PRRA officer clearly explained,
point by point, the reasons why he found the applicant not credible concerning the
acquisition of his passport, his sexual orientation and his religious
conversion, despite the fact that the applicant had persuaded certain
people otherwise; but, the evidence demonstrates completely the opposite of
what the applicant had persuaded certain people of; those people obviously did
not have the evidence before them.
[15]
Furthermore, the PRRA officer also, very
specifically, demonstrated that the applicant’s homosexuality is completely challenged
by his relationships with women; the evidence in this regard also supports the
officer’s statements.
[16]
The officer’s assessment concerning the
applicant’s credibility not only demonstrates significant deficiencies, but
also a lack of inherent logic at the very crux of the account; the
contradictions directly cause the account to collapse by the central
implausibilities with respect to the applicant’s life and conduct (see pages 15
to 24 of the PRRA officer’s decision and also page 27 of that same decision); also,
see Sanaei v Canada (Minister of Citizenship and Immigration), 2014
FC 402 and also, Alomari v Canada (Minister of Citizenship and Immigration),
2015 FC 573).
VII.
Conclusion
[17]
In light of the foregoing, the application for
judicial review is dismissed.
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