Toronto, Ontario, January 25, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
(a.k.a. Maher Azer Felf Girgis)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is an Egyptian Coptic Christian who fears the Gamaat Islamiah and Egyptian officials from the Ministry of State Security. He alleges persecution on the basis of his religious identity. The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected his claims under section 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) due to lack of credibility.
[2] The applicant seeks judicial review of the negative decision and contends that the RPD erred by ignoring, misconstruing and misapplying evidence. I find that there are a number of deficiencies in the RPD’s decision, one of which was fundamental to the claim. Consequently, the application for judicial review will be allowed.
Facts
[3] The applicant was born, raised, educated and employed in Alexandria. Upon the death of his uncle, he moved to Assiut where his family owned farmland. He claims to have been active in the Church of St. Michael in Assiut, specifically by volunteering with the Sunday school, outreach programs for the poor, and youth counselling. The applicant learned that Ashraf Wadi Kirollos (Ashraf), a boy in the youth group, had been persuaded to convert to Islam. Over a two-week period, the applicant visited Ashraf several times and eventually succeeded in convincing him to return to the church. Near the end of this period, the applicant began to suspect that he was under surveillance. He was warned by a priest and other members of his community that he was being “followed and watched by members of the fundamentalist Islamic organizations”. He believed this organization to be the Gamaat Islamia.
[4] Shortly thereafter, his car was set on fire. The applicant reported the incident to the police in Assiut and was told that the matter would be investigated. Upon returning home, he found that his apartment had been vandalized, although nothing was stolen. The following day, he learned that someone had poisoned his family farmland with chemicals. He returned to the police station to make a report. The police informed him that there were witnesses who claimed to have seen him set fire to his own car.
[5] The applicant claimed that his priest advised him that a Fatwa had been issued against him for his involvement in “converting a so-called Muslim to Christianity”. The priest recommended that he leave Assiut as soon as possible. The applicant, his wife and son immediately fled to Alexandria. The next day, he went to the State Security Service to report what had happened in Assiut.
[6] One day later, four members of the State Security came to his residence and insisted that he accompany them to their government offices to discuss his report. The applicant was placed in a small room and was “badly beaten”. He was told that he “could be jailed for five to seven years because he had converted a Muslim”. He was accused of “conspiring to convert other Muslims”. After spending several hours in detention, he was released upon payment of a substantial sum of money.
[7] A Muslim lawyer (contacted by his brother) told the applicant that the State Security had communicated with the police in Assiut and were informed of the allegation that he had set his car on fire. Additionally, Muslim men in Assiut had lodged complaints about the applicant’s involvement in Ashaf’s conversion back to Christianity.
[8] A few days later, while the applicant was seeking employment, State Security officers visited his residence a second time. Upon learning of this, he hid at a friend’s house. He obtained a job where he was “not known” and worked as a “director of purchasing” until April of 2005 when he came to Canada on a business trip. He made his claim for refugee protection on April 18, 2005. He alleged that the State Security had continued to visit his family in Alexandria inquiring into his whereabouts. He claimed that his wife and son had gone into hiding out of fear of the government and the members of the Gamaat Islamia.
The Decision
[9] The hearing was conducted over three hearing dates: August 16, 2005, October 18, 2005 and October 28, 2005. The RPD found that the applicant’s testimony was vague and confusing. It enumerated various inconsistencies and implausibilities in the applicant’s evidence. It acknowledged that some of the inconsistencies were not “core to the claim”. The RPD concluded :
One or two of such examples as set out above may be excused
because no testimony is perfect, but with so many inconsistencies
and vague responses in the aggregate, I find that the claimant is
not generally credible. In light of this finding, I find that the
story of Ashraf, which is the core of the claim, is not credible.
Since I find that the Ashraf story is not credible, then the
claimant’s stated fears are not well-founded.
Issue
[10] The applicant asserts that a number of the credibility findings were patently unreasonable and that the RPD erred by ignoring, misconstruing and misapplying the evidence.
Analysis
[11] In Ratheeskumar v. Canada (Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 280 (F.C.T.D.), I summarized the principles relevant to credibility determinations of the former Convention Refugee Determination Division (CRDD), now the RPD. At paragraph 5, I stated:
¶ 5 The CRDD, a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. It is in the best position to gauge credibility and to draw necessary inferences. As long as the inferences are not so unreasonable as to warrant intervention, the Court will not intervene: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The CRDD is entitled to decide adversely with respect to a claimant's credibility on the basis of inconsistencies in the evidence including inconsistencies within the oral testimony, between the oral testimony and the written narrative and regarding the oral testimony, the written narrative and other evidence before it: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F. C. 238 (C.A.); Leung v. Canada (Minister of Employment and Immigration) (1990), 129 N.R. 391 (F.C.A.). A negative decision regarding credibility must be stated in clear and unmistakable terms: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), but the panel is entitled to rely on criteria such as rationality and common sense: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No 415 (C.A.). The CRDD cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). If the panel makes a finding of fact having misconstrued or ignored relevant evidence before it and relies on those findings when making an adverse finding as to credibility, the decision is unreasonable and warrants intervention: Lai v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 906 (C.A.).
[12] The applicant has microscopically dissected the credibility findings. Because there is a fundamental error in the RPD’s analysis, I need not review all of the findings with which the applicant takes issue.
[13] At page 7 of its reasons, the RPD stated that “[as] a result of the lacunae in the documentary evidence, I find that the claimant is not the active Coptic Christian engaged in the process of re-converting a wayward son of the Church as he claims he is”. The RPD identified the claim in the following terms:
The core of his claim is not that he is a Copt, but that he is an
active Coptic, who taught Sunday School, assisted with social
work for the church and, most importantly for this claim, that
he assisted in the attempted re-conversion of one specific youth
who had converted from Christianity to Islam.
[14] The RPD took exception to the fact that the applicant did not produce corroborative evidence regarding his efforts in relation to Ashraf. At page 9 of its reasons, it stated:
Given the importance of his religious work, particularly with respect
to the youth, Ashraf, one would have expected the claimant to supply
not only his baptismal certificate, but also a letter from his church,
corroborating his religious identity and aspects of the Ashraf matter
known to the church fathers. At the sitting of October 18, 2005, the
RPO spent a considerable amount of time asking the claimant why,
with all the other material from Sami, he did not have a church letter
or documents regarding Ashraf.
[15] This statement is problematic for a variety of reasons. At the beginning of the hearing on October 18th, the RPD accepted a number of documents into evidence (exhibit C-12) including a letter from the applicant’s church. The letter is from a priest of the Church of Angel Michael in Assiut and attests to the applicant’s identity as a Coptic Christian, his activities in the church and his involvement in the Ashraf matter. The RPD stated that “at the sitting of October 18, 2005, the RPD spent a considerable amount of time” asking the applicant why he did not have such a letter. The transcript does not accord with this statement. While there was a peripheral discussion regarding Ashraf on October 18th, it related to his death and when the applicant learned of it. There was no discussion regarding the letter.
[16] The exchange as to why the applicant did not produce corroborative evidence actually occurred on August 16th. Presumably, as a result of that exchange, a number of documents were tendered on October 18th. These documents had not been disclosed in accordance with the requirements of the rules and it was therefore open to the RPD to reject them. However, the RPD did not reject the documents. Rather, it stated “[b]ecause of their relevance I will admit them” (transcript, tribunal record at p. 432).
[17] To complicate matters, at page 10 of its reasons, the RPD stated:
The claimant disclosed documents at the last sitting that he had not
been able to obtain before. In fact, at previous sittings when asked
about the fact that he did not have a corroborating letter from the
church or police reports, the claimant gave elaborate reasons as to
why such documents were unobtainable. In light of this late
unexplained disclosure after much was made of their absence at a
previous sitting, I cannot assign these documents with sufficient
weight to offset my other credibility concerns.
[18] The RPD clearly misapprehended the situation. The documents were disclosed and admitted at the second sitting (including the police reports). A significant number of the “other credibility concerns” were properly identified by the RPD as not central to the claim. The letter from the church went to the crux of the claim. Therefore, although it was open to the RPD to assign little weight to the document, it could not do so on the basis of erroneous reasoning. The RPD cannot claim on the one hand that there was no corroborative evidence and, on the other hand, acknowledge its existence.
[19] In my view, this error goes to the very heart of the claim and is sufficient to warrant intervention. However, if I am mistaken in this regard, there are other aspects of the decision that are problematic.
[20] Regarding the police reports, the RPD concluded that “[t]he claimant did not complain to the Assiut police regarding an incident in their jurisdiction, but to the Alexandria police. He explained he did so because of his fear of the Muslim extremists. I do not accept this explanation”. I have carefully reviewed the PIF and the transcript. When regard is had to both, it is evident that, according to the applicant, he complained to the police in both Assiut and in Alexandria and that he did so in relation to all three incidents. Moreover, the applicant did not provide the noted explanation. While it was open to the RPD to disbelieve the applicant, it was an error, based on a misapprehension of the evidence, to reject an explanation that had not been provided.
[21] The RPD, at page 4 of its reasons, determined that “[i]f the claimant’s religious activities were to be believed, especially with respect to the youth, Ashraf, then I would find that there would be a reasonable chance of serious harm at the hands of Muslim extremists without adequate state protection”. Yet, at page 8 of the reasons, it found that “[t]he problem that the claimant alleges he is exposed to is not found in the literature”. There is no explanation for this internal inconsistency.
[22] Further misapprehension of the evidence occurred in relation to the issue of the “bribe/bond”. The RPD stated that “the claimant never did explain why he used the concept of an illegal bribe in his PIF narrative, if the release was secured by means of a legal condition bond”. In fact, this subject was raised and canvassed extensively at the hearing on October 18th (transcript, tribunal record pp. 438-442) and was discussed again on October 28th (transcript, tribunal record p. 493). The applicant did provide an explanation. While the RPD was entitled to find the explanation implausible, it is erroneous to say that he “never provided an explanation for the inconsistency”.
[23] Counsel for the respondent valiantly argued in defence of the decision by providing various reasons (not contained in the decision) as to why the RPD could have decided as it did. Had the RPD articulated its reasons in the same fashion, in all likelihood, the decision would be unassailable. However, the explanation and analysis for the decision must be found to exist within the reasons of the decision maker.
[24] A finding based upon misconstrued or ignored evidence and relied upon as a basis for a credibility finding is unreasonable and warrants intervention. The misapprehension of the evidence is such that the decision must be set aside. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a differently constituted RPD for determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1700-06
STYLE OF CAUSE: MAHER AZER FELFEL GIRGIS
(a.k.a. Nager Azer Felf Girgis)
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 24, 2007
REASONS FOR ORDER: Layden Stevenson J.
APPEARANCES:
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Randal Montgomery
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Michael Butterfield
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SOLICITORS OF RECORD:
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Randal Montgomery Barrister and Solicitor Toronto, Ontario
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Michael Butterfield Barrister and Solicitor Toronto, Ontario
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