Date: 20050530
Docket: IMM-6423-04
Citation: 2005 FC 766
Ottawa, Ontario, this 30th day of May, 2005
Present: The Honourable Mr. Justice Richard Mosley
BETWEEN:
MARLAIN HENIN (a.k.a. Marlain Sobby Henin), AZIZ AZIZ,
CHRISTIN AZIZ and MARINA AZIZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are citizens of Egypt and Coptic Christians. They claim to fear persecution by Muslim fundamentalists in Egypt because of their religion. Mr. Aziz left Egypt for the United States in November 1993. Mrs. Henin followed with their children in August 1995. They were denied asylum in the US and their appeal of that decision was denied. They then came to Canada in October 2002 and claimed refugee status immediately.
[2] Mrs. Henin was the primary claimant. She was a science teacher in Egypt from 1987 to 1992. She was also assigned to teach religious studies to Christian students in her school. She claims that she was harassed at work by fellow teachers and pressured to wear a hijab and convert to Islam. She claims that the principal of her school was a fundamentalist Muslim. She alleges that her refusal to convert resulted in vandalism to her car, death threats, and a beating for her husband. She also claims that she was threatened that her children would be forcibly converted.
[3] Mrs. Henin claims to have been arrested for insulting Islam and causing religious strife only one week before the entire family was to leave for the US in the fall of 1993. She was originally to be held for four days, which stretched to two weeks. Ultimately, she was held for eight months. Upon her release, she alleges that her photo had been posted on public walls and that while walking with her daughter, the child was pushed in September 1994. She alleges that she was then unable to leave the country for a year because of a requirement to be available for further interrogation.
[4] The Board found that it was implausible that someone who was assigned to teach Christian religious studies in a government-mandated program would be pressured by colleagues to wear a hijab or convert after teaching at the same school for six years. She also found it implausible that the colleagues would attempt to overturn a government instructional requirement. The Board also found it implausible that if Mrs. Henin was indeed being pressured to convert, she would not transfer to another public school or to a private school.
[5] The Board found it implausible that Mrs. Henin was arrested for insulting Islam disturbing the peace and causing religious strife between Christians and Muslims one week before the family was to leave for the US and that her husband simply left her in an Egyptian jail. It was not credible, given the documentary evidence, that she was held for eight months. The Board also found it implausible that she was able to escape the Islamic threats of forcible conversion for a year after her release from jail. The Board also found it implausible that while she was allegedly forbidden to leave Egypt, she was able to keep her passport.
[6] The Board finally found that Coptic Christians are not persecuted in Egypt, based upon the documentary evidence.
[7] The applicant raised a number of issues in written argument, but only pressed three before me:
1. Did the Board rely on improper factors in coming to her decision?
2. Did the Board ignore significant documentary evidence?
3. Were the plausibility findings of the Board justified and reasonable?
1. Reliance on improper factors
[8] The applicants submit that the Board improperly fettered its discretion by relying on the negative finding of the US decision that the applicants are not Convention refugees. If not adopting it, the Board is endorsing it, which is inappropriate, the applicants argue.
[9] I do not see any merit in this argument. In the Board's decision, there is a single short paragraph reciting the facts of the denial of the US claim, much as I have done in the opening paragraph of these reasons. There is nothing further to suggest that these facts influenced the Board's decision. The outcome is simply noted at the end of the Board's credibility analysis. The Board clearly came to its own conclusions. I do not find that it was an error to take note of the failed US claim.
[10] The applicants also submit that the Board improperly relied upon its knowledge of conditions in India and applied "Indian values" to the questions before her rather than those that the applicants would have been subject to in Egypt.
[11] While one might question the relevance of the comparison the Board made between the situation of Coptic Christians in Egypt and that of minorities in India, I do not think it was material, nor am I persuaded that it amounted to the imposition of "Indian values" on the consideration of the claim.
2. Documentary evidence
[12] The applicants submit that the Board's assessment of the documentary evidence is unreasonable because it failed to adequately assess the documentary evidence they proffered: Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.) at para. 3.
[13] According to the applicants, the Board's inference that US Copt literature is biased makes little sense if it is considered that where is no persecution, there is no reason to report on it. Furthermore, the Freedom House publication, which the Board discounts, is not put out by a Christian group, but by a general human rights organization. The applicants submit that the Board ignored pages 22-23 of the Freedom House book explaining why many Copts do not use the word persecution to describe their situation. The US Department of State reports from year to year, indicate that there are indeed genuine problems for Copts in Egypt.
[14] The applicant relied on my recent decision in Ibrahim v. Canada (Minister of Citizenship and Immigration) 2005 FC 671 in which I found that a similar country condition analysis for Coptic Christians in Egypt was flawed because of significant unacknowledged contradictions and because it gave no proper explanation for ignoring some of the documentary evidence.
[15] The respondent submits that Ibrahim is distinguishable. I agree. The treatment of the documentary evidence here is not identical to that in Ibrahim. There is no overt contradiction in the evidence relied upon that went unnoted, as I found in Ibrahim. The Board indicated her preference for the RPO's documents. She was entitled to prefer documents from the Board's sources over the applicant's sources. She did not discount the applicant's documents for a reason that simply does not apply to them, as was the case in Ibrahim. The Board reviewed the country documentation extensively and, given the documents before her, I do not find that she erred in her conclusions.
3. Plausibility
[16] The applicants submit that the Board did not find credibility problems with the claim, simply that certain elements of it were implausible. The sworn testimony of the applicants should have been accepted as true. The Board should then have considered why it believes parts of the story are not true, and then assessed those reasons before overturning the presumption of truthfulness: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[17] The applicants submit that a government policy allowing for Christian religious instruction in schools should not be determinative of the question of whether it is plausible that a Christian teacher could be targeted by bigoted colleagues.
[18] It should be easier to have a plausibility finding overturned than a credibility finding because the Board is in no better position than the Court to make findings based on common sense: Callejas v. Canada (Minster of Employment and Immigration) [1994] F.C.J. No. 113 (T.D.); Karikari v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 586 (T.D.); Parizi v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 1977 (T.D.); Singh v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 142 (T.D.); Soto y Giron v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 481 (F.C.A.).
[19] The respondent submits that the applicants were properly found not to be credible and that the negative credibility finding was decisive of the claim. The applicants failed to establish their claim with credible evidence that they had or would suffer harm in Egypt: Yassine v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 949 (F.C.A.) at paras. 8, 11; Djouadou v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1568 (T.D.) at para. 4.
[20] Determinations as to the plausibility of human conduct are within the jurisdiction of the Board. There is no evidence the Board inappropriately applied Canadian perspectives: Gonzalez v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 805 (T.D.); Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.).
[21] Questions of credibility and weight are matters particularly within the Board's jurisdiction to decide. They should not be subject to a microscopic scrutiny. If the decision is reasonable, it must stand: Dhak v. Canada (Minister of Employment and Immigration) (January 26, 1989) 88-A-316 (F.C.A.).
[22] I do not find the plausibility findings to be patently unreasonable. I agree with Justice Cullen's assessment of the law in Ismaeli v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 573 regarding the deference due such findings. The reviewing court should refuse to interfere with decisions which assess credibility or plausibility, provided that the decisions are properly founded on the evidence, do not ignore the evidence, or are supported by the evidence.
[23] Here, the Board connects the applicant's claims to the picture she draws from the documents about conditions in Egypt. Contrary to the applicant's contention that the negative findings were based upon implausibility concerns rather than credibility concerns, it is clear from the Board's reasons that, for the most part, the lack of plausibility arose from contradictions and inconsistencies between the testimony and the country condition documentation, not simply inferences about human behaviour.
[24] Central to the implausibility findings is the fact that the applicant chose not to leave the public school system where she was experiencing discrimination and transfer to one of the state supported or private Christian schools. When asked why, she simply says it never occurred to her. The requirement for religious instruction in Egypt applies to both public and private schools, according to the documentary evidence. Mrs. Henin was clearly aware of their existence, based on her responses to the Board's questioning. The Board's finding of implausibility was reasonable in the circumstances.
[25] No question for certification was proposed, and none is certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
" Richard G. Mosley "
F.C.J
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6423-04
STYLE OF CAUSE: MARLAIN HENIN (a.k.a. Marlain Sobby Henin),
AZIZ AZIZ, CHRISTIN AZIZ AND MARINA AZIZ
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 26, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: May 30, 2005
APPEARANCES:
Randal Montgomery FOR THE APPLICANT
Patricia MacPhee FOR THE RESPONDENT
SOLICITORS OF RECORD:
RANDAL MONTGOMERY FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DeputyAttorney General of Canada
Toronto, Ontario