Ottawa, Ontario, September 19, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Maged Zarif Rasem is a citizen of Egypt who claims in Canada to be a Convention refugee and a person in need of protection. He brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") that rejected his claim.
[2] Mr. Rasem testified before the RPD that he is a Coptic Christian who was closely associated with his church in Egypt. Starting in 1997 he provided regular financial assistance to the church, especially providing support to Christian youths who were under pressure to convert to Islam. Because of that support, Mr. Rasem asserts that he was involved in altercations with religious fundamentalists who tried to assault him. The police would not file a report and told him to deal with the matter himself.
[3] Mr. Rasem testified that in August of 1998 fundamentalists threatened him, demanding that he pay "jizzia" in the amount of 200 Egyptian pounds per month. He was told that if he did not pay this sum, he would be assaulted and his family's jewellery store would be robbed and vandalized. Mr. Rasem was also told to stop giving money to his church. Believing he would not be protected by the police, Mr. Rasem paid the jizzia.
[4] At the end of October 2000, Mr. Rasem says that the same fundamentalists came to the jewellery store and accused him of having sexual relations with an employee named Fatima. He was told he would be killed if he did not convert to Islam and marry Fatima. He testified that he was unable to convince the fundamentalists that the allegations were false, so he called Fatima to speak to the fundamentalists. To his surprise, she said that Mr. Rasem had forced himself upon her. The fundamentalists agreed to let Mr. Rasem go if he paid them 100,000 Egyptian pounds. He told him he would need time to pay this amount.
[5] Mr. Rasem testified that he then tried to reduce the business at the store and began looking for a suitable business location in Cairo, hoping to escape the harassment there. Fatima noticed the reduction in business and reported his intentions to the fundamentalists. They returned to Mr. Rasem's store and said they knew of his intentions to move to Cairo. They robbed the store and threatened to kill Mr. Rasem if he tried to escape. He told them that he would pay them as soon as he collected enough money. One of the fundamentalists took out a gun and threatened to kill Mr. Rasem if he was "playing games" with them. They said that he would not be the first Christian to be killed in such circumstances. They also said that killing a Christian who had had sexual relations with a Muslim woman would lead the killer to heaven.
[6] Mr. Rasem says that he realized that his situation in Egypt was becoming extremely precarious, and he discussed the matter with his priest. The priest advised Mr. Rasem to escape from Egypt. On December 14, 2000 he fled Egypt and proceeded to Canada through the United States. Shortly after his arrival in Canada, he made a refugee claim.
[7] In rejecting Mr. Rasem's claim, the RPD found the determinative issues were credibility and Mr. Rasem's delay in leaving Egypt.
[8] Mr. Rasem alleges that, in so finding, the RPD erred:
1. in determining that his delay in leaving Egypt undermined his subjective fear;
2. in finding that his failure to make a refugee claim in the United Statesundermined his subjective fear;
3. in drawing a negative credibility inference because it found there was no documentary evidence to support the allegation of professional, educated Christian men being forcibly converted to Islam in order to marry Muslim women;
4. in finding it to be implausible that the townsfolk and/or the police in the town where Mr. Rasem lived did not learn of the alleged sexual assault on Fatima;
5. in finding it to be implausible that Fatima "would suddenly be transformed into an Islamic fundamentalist and accuse [Mr. Rasem] of rape in order to pressure him to convert to [Islam]";
6. in finding it to be implausible that Fatima would sacrifice her reputation by admitting to a sexual assault; and
7. in finding it to be implausible that Mr. Rasem would continue to work alone in the jewellery store with Fatima after the alleged assault.
[9] The first three asserted errors go to Mr. Rasem's credibility, while the last four errors go to the plausibility of his testimony. As such, the applicable standard of review is whether the findings were made in a perverse or capricious manner, or without regard for the material before the RPD. See: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 38; Aguebor v. Canada(Minister of Employment and Immigration) (1993), 160 N.R. 315 at paragraph 4. This standard equates to the patent unreasonableness standard of review.
[10] A patently unreasonable defect is one that is immediately apparent; for example, a decision that is clearly irrational or not in accordance with reason is patently unreasonable. The standard of patent unreasonableness requires a reviewing court to be satisfied that, while there could have been many appropriate answers to a question, there could not be the answer relied upon by the decision-maker. See: Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 164 per Mr. Justice Binnie.
[11] In order to decide whether the conclusions reached by the RPD were patently unreasonable, the decision must be read and interpreted as a whole in the context of the evidence before the RPD. See: Miranda v. Canada(Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (T.D.) at paragraph 3.
[12] In the present case, as the panel observed, shari'a or Islamic law became the main source of legislation in Egypt in 1982. Mr. Rasem agreed that it is very shameful for a Muslim woman to admit to having been sexually assaulted, that if the Gam'a al Islamiya confirmed the rape the perpetrator would be killed, and that women in Islamic countries are often punished for sexual activity even if they are victims of a sexual assault. On the evidence before the panel it was not, therefore, patently unreasonable for it to conclude that it was implausible that a young, unmarried, devout Muslim woman who had worked with Mr. Rasem for twelve years, and was a close family friend, would sacrifice her honour either for money or to gain Mr. Rasem's conversion. Similarly, it was not patently unreasonable for the panel to conclude that, had such an allegation been made, the Islamic fundamentalists would not have permitted Mr. Rasem to continue to work alone with Fatima.
[13] As to the absence of documentary evidence, the evidence before the RPD overwhelmingly described the forced conversion of Christian girls. It made no mention of the forced conversion of educated, Christian men for the purpose of marrying Muslim women. It was not patently unreasonable for the RPD to draw a negative credibility inference from the failure of the documentary evidence to support Mr. Rasem's claim. Further, there was documentary evidence to the effect that "a neighbourhood sheikh" or a cadi cannot force a Christian to convert to Islam in order to marry a Muslim woman who accused him of assault, because the process is complicated and includes a requirement that there be an interview between the potential convert and a Christian priest.
[14] Additionally the panel noted, and Mr. Rasem admitted, that he gave contradictory evidence regarding the true objectives of the Islamic fundamentalists. When asked about the objectives of the fundamentalists, Mr. Rasem said that they clearly wanted him to convert to Islam. He also indicated, however, that the fundamentalists just wanted the money and, in fact, they offered to leave him alone if he paid a substantial amount of money. Mr. Rasem also gave evidence that they told him he would be killed if he did not convert to Islam and marry Fatima. He eventually explained that conversion was the main goal, while the money was used as pressure. It was not patently unreasonable for the panel to have found that this inconsistency undermined Mr. Rasem's credibility.
[15] Reading the decision of the RPD as a whole, in the context of the evidence before it, I am satisfied that it was not patently unreasonable for the RPD to conclude that Mr. Rasem's claim was not credible. Thus, the application for judicial review will be dismissed.
[16] Having so found, I express concern at the conclusions of the RPD with respect to Mr. Rasem's subjective fear. Mr. Rasem's consideration of the possibility of relocating to Cairo was consistent with his obligation at law to pursue any safe, internal flight alternative. As for his failure to claim protection in the United States, the evidence was that during the five days in which Mr. Rasem was in the United States, he met with a lawyer who told him that in cases such as his there was a high percentage of failed claims and that because Mr. Rasem had a visa for Canada he should come to Canada and claim here. On that evidence, it is difficult for me to see how Mr. Rasem's subsequent travel to Canada and prompt claim for refugee status is inconsistent with the existence of a subjective fear. However, I am satisfied that any error with respect to Mr. Rasem's subjective fear is not material to the panel's decision. The RPD rejected Mr. Rasem's claim because it found the central element of his claim to be implausible and not supported by the documentary evidence. As noted above, those findings are not patently unreasonable.
[17] Counsel posed no question for certification and I agree that no question of general importance arises on this record.
ORDER
[18] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10054-04
STYLE OF CAUSE:
MAGED ZARIF RASEM
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2005
REASONS FOR ORDER AND ORDER: DAWSON J.
APPEARANCES:
Hart A. Kaminker FOR APPLICANT
SOLICITORS OF RECORD:
Hart A. Kaminker
Barrister and Solicitor
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT