Date: 19980130
Docket: IMM-835-97
BETWEEN:
SHERIF ABOUHALIMA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the"CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that term in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 29th of January, 1997. This is the second time this matter has been before the Court. An earlier decision of the CRDD determining this applicant not to be a Convention refugee was set aside on judicial review2.
[2] The applicant is an Egyptian national. He was born in March of 1965. He arrived in Canada, more or less by accident, after unsuccessfully seeking entry into the United States. The applicant's mother and father and a younger brother, El Said, reside in Egypt. The applicant has two other brothers in the United States, one of whom has been convicted and imprisoned in connection with the bombing of the World Trade Centre in New York City in February of 1993. The other brother in the United States is charged with assisting the convicted brother to leave the United States following the bombing and prior to the convicted brother's arrest by Egyptian authorities in Egypt and ultimate transfer into American custody.
[3] Following the bombing of the World Trade Centre, the applicant, who had been visited in Canada by his two brothers from the United States just some three months prior to the bombing, made a sur place refugee claim based upon his fear that, if required to return to Egypt, he would be persecuted by reason of his membership in a particular social group, his family, and his perceived political opinion, that is the political opinion of his two U.S. based brothers, muslim fundamentalism.
[4] Following the World Trade Centre bombing, the brother now convicted and imprisoned fled the United States to Egypt. In March 1993, he was taken into custody there. The applicant's younger brother, El Said was taken into custody at the same time. El Said was held for eight days, interrogated and beaten. He was again arrested, in the company of friends, in 1994 but there are no allegations that he was beaten during the time he was then detained.
[5] The CRDD determined the applicant to be "similarly situated" to his younger brother El Said. It wrote:
| In our opinion, what the claimant faces upon return to Egypt is a serious possibility that he will be treated in a fashion similar to his brother, El Said. Does this mean that he faces a serious possibility of persecution? |
[6] The CRDD then went on to quote at some length from jurisprudence of this Court both at the trial and appeal level which, it concludes, stands for the proposition that "rough treatment" in a country that is experiencing serious terrorists activity, does not of itself amount to persecution. Of particular significance is the following quotation relied upon by the CRDD:
| ...the insults, shoving and even assaults to which she was subjected did not amount to persecution, even if the various incidents related by her were taken cumulatively... This finding of fact does not seem to us to be unreasonable in view of the record as it stands.3 [underlining added by me for emphasis] |
[7] The refugee claimant there being considered was asserting a claim against Sri Lanka.
[8] The CRDD then acknowledges that, not only is Egypt experiencing serious terrorists activity but:
| The response of the Egyptian government to terrorists violence has been, apparently, to fight fire with fire: |
[9] The CRDD concludes:
| The situation in Egypt is thus very similar to the situation being considered by the Federal Court in the jurisprudence previously cited [all related to Sri Lanka]. Such being the case, we find that the claimant does not face 'persecution but merely lamentable rough treatment at the hands of understandably nervous and suspecting Egyptian officers.' [citations omitted] |
[10] This passage from the reasons of the CRDD would, in light of what follows, appear to the Court to imply that the CRDD concludes the applicant would only suffer "lamentably rough treatment" if returned to Egypt because, as a person similarly situated to his brother El Said, the applicant, if detained, would be subjected to the kind to treatment El Said endured when taken into custody in 1994, when he was not beaten. This is to be contrasted with the treatment that El Said incurred when taken into custody in 1993 at the same time as his older brother who is now under sentence in the United States. At that time, neither the convicted and incarcerated brother or the brother now under charge were in U.S. custody. By contrast, when El Said was in custody in 1994, the two other brothers were both, as now, in U.S. custody. Thus, the CRDD appears to reason, the pressures on Egyptian authorities in 1993, were relieved by 1994 as they are today.
[11] That the foregoing interpretation is appropriate is borne out by the closing paragraphs of the CRDD's reasons. They read:
| The evidence before us indicates that the arrest and beating of El Said occurred prior to the apprehending of Mahmud in Egypt and his return to the United States. While El Said was detained once again later, there is no evidence that he was beaten on that occasion, and the evidence is that he has not been detained subsequent to 1994. This would be consistent with the documentary evidence just cited. Since Mahmud has been tried, convicted, and sentenced, can there be a serious possibility that the claimant would be detained and tortured in an attempt to have Mahmud surrender himself? Certainly not. |
| The panel finds that there exists a serious possibility that the claimant, due to his relationship to Mahmud and his prolonged stay outside of Egypt, would be detained and questioned upon a return to Egypt. Such questioning may be accompanied by "lamentably rough treatment". However, in light of the evidence before us dealing with the experiences of his brother El Said and the binding jurisprudence, we do not find the claimant to face a serious possibility of persecution. |
[12] Clearly then, the decision of the CRDD turns to a high degree on its determination that the applicant is similarly situated to his brother El Said. While counsel for the applicant raised a number of additional issues with respect to the CRDD's reasons for decision, I am satisfied that the only remaining issue of substance is whether the CRDD erred in reviewable manner in determining the applicant and his younger brother to be similarly situated.
[13] There are a number of points of difference between the situations of the applicant and his younger brother. The applicant is some twelve years older than his younger brother and, at the time of the World Trade Centre bombing, was an adult while his younger could only be said to be a youth at that time. The applicant has now been absent from Egypt for a significant period of time and therefore is, to a significant extent, unknown to Egyptian officials, while his younger brother has remained in Egypt and has been the subject of two detentions and therefore could be considered to be reasonably well-known to those officials. At the time of the bombing and in the year preceding it, the applicant lived in relatively close proximity to his two brothers in the United States. Additionally, the applicant was visited by his United States based brothers within three months preceding the World Trade Centre bombing. The evidence does not disclose that El Said was outside Egypt or met with his brothers in the relevant period.
[14] What the applicant has in common with his younger brother, I conclude, is of greater significance. Neither admits to, or is apparently suspected of, involvement with the World Trade Centre bombing. Neither admits to involvement with radical Islamic fundamentalist groups and there was no evidence before the CRDD to indicate otherwise.
[15] Counsel for the respondent urged that it is of no consequence that I might have reached a different conclusion as to whether or not the applicant and his younger brother were similarly situated. She argued that such determination is a question of fact involving the weighing of evidence and that function is appropriately within the preview of the CRDD. I am in agreement with those submissions. I conclude that the determination by the CRDD that the applicant and his younger brother El Said would be viewed in the eyes of Egyptian authorities if, the applicant were returned to Egypt, to be similarly situated was reasonably open to it. On that basis, and given my interpretation of the reasoning of the CRDD, I conclude that its decision that the applicant would not face a serious possibility of persecution if returned to Egypt was reasonably open to it.
[16] For the foregoing reasons, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
_______________________________
Judge
Ottawa, Ontario
January 30, 1998
__________________
2 [1996] F.C.J. No. 1017 (Q.L.)
3 Ihaddademe v. Minister of Employment and Immigration, [1996] F.C.J. No. 75 (Q.L.)