Ottawa, Ontario, this 30th day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Hany Tuggrh, an Egyptian citizen claims to be a Convention refugee. He claims a well-founded fear of persecution because of his religion, that being Coptic Orthodox Christian.
[2] In a decision dated July 12, 2004, a panel of the Immigration and Refugee Board, Refugee Protection Division (the "Board") determined that the Applicant was not a Convention refugee or a person in need of protection. In addition to finding that the Applicant was not credible with respect to a number of the alleged incidents, the Board found that he had failed to rebut the presumption of state protection.
[3] The Applicant seeks judicial review of the Board's decision.
[4] The issues raised by this application are:
1. Did the Board err in reaching its credibility findings?
2. Did the Board err in reaching its finding that the Applicant failed to rebut the presumption of state protection?
[5] The decision of the Board, and particular, findings of credibility are to be accorded the highest level of deference and reviewed at a standard of patent unreasonableness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). A determination of the availability of state protection is also reviewed at a standard of patent unreasonableness (Nawaz v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1584, at paras. 11 & 19). However, this highest standard of review does not relieve the Board of its obligations to explain its credibility findings in clear terms and to identify the evidence that supports its conclusions. Where the decision rests upon negative plausibility findings, the Board must explain its findings and not merely state that it finds some particular event or action implausible. Further, it cannot ignore strong evidence that points the other way (Ilyas v. Canada (Minister of Citizenship and Immigration), 2004 FC 1270, at paras. 59 - 60).
[6] In this case, the Board reached a number of conclusions and made a number of inferences that are either not supported by the evidence or not explained in sufficiently clear terms. These are set out below.
(a) Job promotion
[7] The Board draws a conclusion that the Applicant was not of interest to the Muslims due to a promotion in his first job to the position of assistant manager. Given that there was no evidence before the Board as to who employed the Applicant in that first job, this conclusion is totally unsupported by the evidence.
(b) Attack on June 13, 2003
[8] The Board finds the Applicant to not be credible about an alleged attack on June 13, 2003 primarily on the basis that he claimed that he went to the police after that attack. This is a clear error as the testimony shows that the Applicant never testified that he went to the police after this attack.
(c) No attack at airport
[9] The Board concludes that the Applicant was not of interest to the Muslim extremists because, if he were of interest, the Muslim extremists would have attacked him at the airport when he returned to Cairo from Athens in 2003. This implausibility finding does not bear up under any level of scrutiny. Stated in other words, the Board is saying that Muslim extremists who are "after" an individual lie in wait at the airport on the random chance that the targeted individual gets off an airplane. This is not logical and certainly not a solid foundation for an implausibility finding. In addition, on this aspect of the decision, the Board states that "the claimant was asked if he had any problems at the Cairo airport on his return to Egypt, he said that he did not have any problems". This statement is incorrect; a review of the transcript contains no such question and response. Although the information may have been inferred from the Applicant's Personal Information Form, it is not acceptable for the Board to "invent" questions and answers to support its conclusions.
(d) Applicant's profile
[10] The Board states that it does not believe that the claimant has a profile to make him of interest to the Muslim extremists but does not describe what "profile" or standard this individual is being compared to. If the Board purports to set a standard against which the evidence is to be tested, it must, in my view, explain what that "profile" would be. Its failure to do so was an error.
(e) Behaviour of Muslim extremists
[11] The Board concludes that "if the Muslims wanted to attack the claimant, they would not have allowed him to do business with Muslims and attacked him on the street when he visited the Muslim business people with whom he did business." However, the Board does not identify any evidence that would support this baldly-stated view of how Muslims would behave. The Board's conclusion on this point extends beyond the application of common sense to the situation; it requires the Board to have knowledge of the behaviour of Muslim extremists. If this conclusion was based on the Board's expert knowledge of Muslim extremist behaviour, the Board should have specifically said so.
(f) State Security
[12] The Board dismisses the Applicant's fear of and reasons for not going to the State Security, describing his fear as "sheer speculation that he might disappear based on rumours since . . . he did not know anyone who reported to the State Security and disappeared". However, the Board fails to acknowledge or discuss the documentary evidence that described disappearances at the hands of the State Security. Further, I cannot see the relevance, in light of this documentary evidence, of the fact that the Applicant did not know anyone who had disappeared.
(g) State protection
[13] With respect to the issue of state protection, the Board refers to only one paragraph from the extensive documentary evidence and then jumps to conclude that "the above states that the police provide protection to Coptic Christians". It is unclear how the Board chose these few lines to exemplify the situation facing Coptic Christians in Egypt. My first problem with this analysis is that the citing of this one passage does not demonstrate that the Board had regard to the documentary evidence on state protection. Further, the passage cited, if anything, leads to a conclusion that there is inadequate protection of Christians. There is no analysis of the documentary evidence whatsoever and, hence, no basis for the Board to conclude that "the presumption of state protection has not been rebutted".
[14] In conclusion, I am of the view that, in light of the numerous errors and inadequacies in the decision, it should not stand. Neither party proposes a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is allowed and the matter referred back to a different panel of the Board for re-determination.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6853-04
STYLE OF CAUSE: HANY TUGGRH v. THE M.C. & I.
DATE OF HEARING: June 29, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: June 30, 2005
APPEARANCES BY:
Hart Kaminker FOR APPLICANT
Ladan Shahrooz FOR RESPONDENT
SOLICITORS OF RECORD:
Hart Kaminker FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario