Docket: IMM-1388-05
Ottawa, Ontario, this 23rd day of September, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
Nasr Fawzy Mahmoud
Applicant
and
Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Applicant, Nasr Fawzy Mahmoud, arrived in Canada on July 29, 1999 as an employee of the Egyptian Embassy. In August of 2001, he was investigated by his employer for misappropriating embassy funds; charges were laid but later stayed by the Crown. The Embassy informed the Applicant that he would be transferred back to Egypt, at which time he claimed refugee status on the basis of fear of religious persecution.
[2] The Applicant was born Muslim, but asserts that he and his nuclear family practised Christianity in secret. He contends that Christians are persecuted by the Muslim majority in Egypt, particularly those Christians who have converted from Islam. The Applicant believed that his employer had become aware of his religious beliefs, and had falsified the fraud charges against him as a result. He alleges that the Egyptian government is endeavouring to have him returned to that country where he would be tortured, and possibly killed, because of his status as a Christian and an apostate, or person who has abandoned his religion.
[3] The Refugee Protection Division of the Immigration and Refugee Board (the "Board") decided that the Applicant's evidence was not credible, citing various inconsistencies in his testimony. In essence, the Board found that he was not a Christian either in Egypt or at the time of his marriage, and only became a Christian for the purpose of his refugee claim.
Issues
[4] The Applicant raises two issues:
1. Was the hearing conducted in a manner which breached the principles of natural justice?
2. Did the Board disregard relevant evidence which was in its possession?
Standard of review
As far as the allegation of denial of natural justice, a court is not required to engage in an assessment of the appropriate standard of review. Instead, it must examine the specific circumstances of the case and determine whether the tribunal in question adhered to the rules of procedural fairness (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18).
[5] A separate standard of review applies to the allegation that relevant evidence was ignored. The Board operates under a mandate to make factual findings and to assess a claimant's credibility. It is entitled to assess available evidence and, unless it can be demonstrated that the Board's inferences and conclusions are so patently unreasonable that they could not have been drawn, or that the Board appears to have drawn them capriciously or without regard to the evidence, the Court will not interfere, regardless of whether or not it agrees with those inferences. (Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 and Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 560).
[6] Its position as the trier of fact puts the Board in the best position to assess credibility and draw the associated inferences. The standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).
Issue 1: Was the hearing conducted in a manner which breached the principles of natural justice?
Appellant's Argument
[7] The Applicant asserts that several errors committed throughout his hearing had the cumulative effect of denying him a fair hearing. He alleges that the Board member "closed off issues that were relevant", and specifically, whether the fact that the Egyptian government initiated criminal charges against the Applicant in Canada was indicative of its intent towards him if returned to Egypt.
[8] He further argues that the Board member interfered with the orderly presentation of the case by interrupting the proceedings with "lengthy interventions". The effect of these interruptions was not to focus the hearing (as stated by the Board member), but rather to deprive the Applicant of the opportunity to present his case.
Analysis
[9] With respect to documentation and the Board member closing off issues from consideration, these elements do not appear to have had a detrimental effect on the Applicant's hearing. During the hearing itself, the Board member accepted documents, despite a list of exhibits not being filed within the Board's rules, in order to "be on the safe side". The Board member said he would consider whatever was important to the Applicant's case[1]. This includes information concerning the Egyptian government's desire to have the Applicant returned to Egypt,[2] the very issue which the Applicant asserts was closed off by the Board member. Even if the Board member indicated at the beginning of the hearing that the Egyptian government's intention with respect to the Applicant was not a determinative issue, he considered it nonetheless in rendering his decision. This issue was referred to by the Board member in his reasons,[3] where he discussed the evidence and indicated why he did not accept the Applicant's argument. I cannot detect any procedural unfairness flowing from this issue.
[10] It is undisputed that a Board member's conduct in a hearing may result in an apprehension of bias or a breach of natural justice. For example, intrusive and intimidating interventions by a Board member may be found to interfere with an applicant's ability to present his case. (Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14). However, if the interruptions are made for the purpose of clarifying testimony or an issue, they will not raise a reasonable apprehension of bias, even if the manner of questioning or interruption is "energetic". (Ithibu v. Canada (Minister of Citizenship and Immigration, [2001] F.C.J. No. 499).
[11] A review of the hearing transcript reveals that both counsel and the Applicant were interrupted by the Board member on several occasions. The purpose of the interruptions was to clarify testimony, focus the hearing, or to ask the Applicant to confine his answer to the question asked. In addition, the Board member spoke to clarify his mandate and the application of the Chairperson's Guidelines to provide a focussed hearing. Counsel may have been unprepared and/or unfamiliar with the applicable rules, and this may have led to more intervention that would have been ideal by the Board member. However, the Applicant was not restricted from fully presenting his case. On several occasions he was permitted to add additional testimony, and was asked by the Board member if he had anything else he wished to say. The conduct of the Board member does not, in my view, fall within the impugned conduct as set out in Kumar, supra. The Applicant was not prejudiced by the Board member's involvement with his hearing. Consequently, I am unable to conclude that he was deprived of natural justice.
Issue 2: Did the Board disregard relevant evidence which was in its possession?
Applicant's Argument
[12] The Applicant argues that the Board focussed its review of the documentary evidence on Christians in general, and failed to give adequate consideration to the treatment in Egypt of Christians who have converted from Islam. Specifically, the Applicant points to two documents prepared by the IRB Research Directorate which indicate that Muslims who convert to Christianity face persecution in Egypt.
[13] There is no need for the Court to consider these points, as the situation of Christians in Egypt is not relevant given the Board's findings that the claimant is not credible.
[14] The Board stated in paragraph 1 of its reasons: "I do not find the claimant's testimony trustworthy on key aspects...". One of these key aspects was his conversion to Christianity. After pointing to numerous contradictions and implausibilities of his story regarding his conversion (such as the faith of his parents, his official identity card, the timing of his baptism, his marriage to a Muslim, and his failure to reveal his alleged faith to his wife), the Board member concluded that the Applicant's claimed conversion to Christianity was not genuine.
[15] The Board stated at the end of paragraph 3 of its reasons: "I find from the evidence that this baptism was done in pursuit of this refugee claim". At the end of paragraph 4 of its reasons the Board states: " I find that the claimant was not a Christian at the time of the marriage but that he became so in Canada for the purpose of this refugee claim".
[16] Credibility findings are the heartland of the Board's jurisdiction and will not be disturbed by this court unless they are patently unreasonable. I can find nothing patently unreasonable in the Board's conclusion.
[17] It follows logically that if his conversion to Christianity is not considered genuine, the issue of treatment of Christians in Egypt becomes irrelevant. The court need not examine whether the Board properly construed the documentary evidence in that respect. Accordingly, this application cannot succeed.
[18] Subsequent to the hearing, counsel for the Applicant sent the Court submissions regarding three possible certified questions. These submissions were unsolicited. In addition, they concern the issue of documentary evidence regarding the treatment of apostates in Egypt. As that issue is not relevant to the decision herein, the Court will not entertain these submissions.
ORDER
THIS COURT ORDERS that this application be dismissed.
A Konrad W. von Finckenstein @
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1388-05
STYLE OF CAUSE: Nasr Fawzy Mahmoud
and
Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 19, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
| David Morris |
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FOR THE APPLICANT |
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| Sonia Barrette |
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FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
| David Morris Bell, Unger, Riley, Morris Ottawa, ON |
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FOR THE APPLICANT |
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| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON |
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FOR THE RESPONDENT |
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[1] Transcript of Hearing, Certified Tribunal Record at pp. 448, 471.
[2] document from the Embassy of the Republic of Egypt at pp. 79-80 of the Certified Tribunal Record.
[3] Certified Tribunal Record at pp. 10-11.