Date: 20050511
Docket: IMM-9416-04
Citation: 2005 FC 671
Toronto, Ontario, May 11th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
EMAD IBRAHIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ibrahim is a citizen of Egypt. He sought judicial review of a decision by a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 20, 2004 wherein the applicant was found not to be a Convention refugee nor a person in need of protection. He claims to be in need of protection and to have a well-founded fear of persecution by reason of his Coptic Christian religion. At the conclusion of the hearing, I advised the parties that I would grant the application and provided brief oral reasons which I will elaborate upon below.
[2] Mr. Ibrahim claimed to have been the subject of persecution for an incident which arose in 1995 in his home town of Assiut when he was seen to drink water during the daylight hours in the Ramadan religious season. He states that he was first attacked by a young Muslim male and then after he defended himself, by a mob infuriated by what it perceived as an assault on one of them by a member of the minority religion. He was severely beaten and rendered unconscious. The police later became involved and detained him for questioning for about 17 hours, after which they told him to get out of town and not to return.
[3] These events, the applicant claims, led to a fatwa being issued against him in a local mosque that was later communicated to extremists throughout Egypt. He says that he was on the run thereafter for the next four years. During this time, he completed a Commerce degree at Assiut University by correspondence and sitting for exams in Cairo. In April 1999, he returned home to visit his sick mother. He says that in July, 1999 he was shot at by three men. He then fled to the US. After five months there, he returned to Egypt because of concerns that his father had lost his job as a result of the attention placed upon him. He returned to the US in September 2001 and came to Canada in November 2003 to claim asylum.
[4] The Board found Mr. Ibrahim's story not credible. In particular, it found that it did not believe that a mob would attack him for drinking water during Ramadan, that a fatwa would be issued for such a trivial offence, or that he was in hiding at any time. The Board also found that the objective country documentation on Egypt do not show problems that amount to persecution of Coptic Christians.
[5] The issues raised by the applicant were:
1. whether the Board member misconstrued the evidence and based her decision on erroneous findings with respect to the applicant's testimony and the country condition documents; and
2. whether the Board member engaged in an overzealous or microscopic examination of the claim and ignored explanations for perceived inconsistencies?
[6] Findings of fact made by the Board can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the evidence, i.e., on a standard of patent unreasonableness: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Mohammed v. Canada (Minister of Citizenship and Immigration) 2003 FC 954; Traore v. Canada (Minister of Citizenship and Immigration) 2003 FC 1256; Liang v.Canada (Minister of Citizenship and Immigration) 2003 FC 1501.
[7] I do not agree with the applicant that the Board in this case engaged in an overzealous or microscopic examination of the applicant's claim. The underlying premise, that a fatwa had been issued against the applicant that put him at risk of harm throughout Egypt from Muslim extremists did require examination and the Board was entitled to also closely scrutinize what the applicant says he did in the ensuing years and his statements upon arrival in this country.
[8] While certain of the inconsistencies perceived by the Board are questionable, particularly in light of the explanations provided by the applicant, the Board's findings in that respect are not patently unreasonable and I would not interfere with its decision on that ground.
[9] I do find, however, that the Board misstated the nature of the applicant's claim at page 1 of the reasons: "[a]ccording to the claimant, a Muslim mob attacked him in his hometown of Assiut for drinking water during Ramadan." The Board went on to conclude that it was implausible that a fatwa would be issued against a Christian for this reason in a country with a substantial minority of Christians who do not fast during Ramadan.
[10] But that is not what the applicant had claimed. Both his Personal Information Form and his oral testimony were clear that had he not defended himself from the youth, the mob would not have intervened, the police would not have become involved, and the fatwa would not have issued. He claimed that he was attacked by the mob because he had been engaged in a scuffle with the young Muslim man, was beaten and left for dead. It was only because he survived the beating that the fatwa was declared against him. The analysis the Board conducted was thus predicated upon an erroneous and trivialized understanding of the applicant's evidence about the central incident.
[11] The Board's country conditions analysis, while voluminous, addresses several areas that are irrelevant to the claim (eg., forced conversions of Coptic girls, church repair problems etc).
The member preferred the documentary evidence prepared by the Board itself for research purposes as being from "...a wide variety of sources with no interest in the outcome of the claim and to that extent unbiased." She concluded that the evidence showed discrimination and not persecution.
[12] Some of the evidence submitted by the applicant is evidently from Christian sources, including organizations associated with the Coptic faith, that are concerned about the pressures faced by the minority Copts. Other claimant material was from what may be fairly characterized as objective third parties. It is not evident from the member's reasons why the sources of that evidence could have any interest in the outcome of the claim or be said to be biased. The member gives no reasons for why it may be biased.
[13] It is clear from the evidence on the record, both that assembled by the Board for its own research purposes, and that submitted by the applicant, that serious sectarian violence in Egypt can and does arise for apparently trivial reasons. One example provided concerned a dispute between a shopkeeper and a customer that resulted in a communal riot and deaths. The evidence relied upon by the applicant paints a bleaker picture of the situation in Egypt than that referred to by the Board in reaching its conclusion that the Copts are subject to discrimination and not persecution.
[14] The respondent properly submits that the Board is entitled to rely on the documentary evidence that it prefers and to assign the weight it sees fit to the evidence, as long as it has regard to all of the evidence in reaching that decision. The Board indicated that it was aware of allegations that persecution of Coptic Christians is under-reported, but in the end, preferred the Board's evidence indicating that Coptic Christians are not persecuted in Egypt: Mahendran v. Canada (Minister of Employment and Immigration) (1991), 134 N.R. 316 (F.C.A.); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Medarovik v. Canada (Minister of Citizenship and Immigration) 2002 FCT 61.
[15] The applicant argues that the Board ignored contradictions in the documentary evidence before it. He cites as one example the transcript of a lecture given to the Board's staff by Dr. Rachad Antonius a Montreal based expert on the Christian minorities in Egypt. Dr. Antonius states unequivocally at page 30 of the transcript that there is persecution of Copts by violent Islamists in Egypt. The Board refers to Dr. Antonius' lecture, at page 14 of the decision, as supporting the conclusion that these are individual acts of prejudice and violence. While Dr. Antonius distinguished these acts from state persecution, his evidence was clear in my view that the violence was organized by Islamist groups and not just isolated incidents.
[16] Overall, I am satisfied that the Board misconstrued the evidence and based her decision on erroneous findings without regard to the totality of the evidence. Accordingly, the application is granted.
[17] No serious question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that the application for judicial review is granted and the matter is remitted to the Board for redetermination by a differently constituted panel.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9416-04
STYLE OF CAUSE: EMAD IBRAHIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 10, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: MAY 11, 2005
APPEARANCES BY:
Chantal Desloges FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN AND SPIEGEL
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT