Date: 20050603
Docket: IMM-6143-04
Citation: 2005 FC 809
BETWEEN:
MOHAMED SALAH ABDEL HAY EL DEIASTI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicant seeks judicial review of a decision by the Immigration and Refugee Board (IRB) which rejected his claim for refugee status. He claimed that he was a conscientious objector from compulsory military service in the Egyptian armed forces. The IRB found that there was insufficient credible or trustworthy evidence on which to base a positive finding.
[2] The IRB found that a document, a supposed copy of his arrest warrant, was patently false. A conclusion which the Applicant did not challenge. The IRB also drew an adverse inference from his failure to claim refugee status during his six (6) months in the U.S. in 2001 and in a further fifteen (15) months in the U.S. during 2002-2003.
[3] The IRB noted that the Applicant had a general aversion to Egyptian government policies and its President. The IRB also observed that he had been educated in a military school in Egypt - he continued there despite his avowed aversion to military service in the Egyptian armed forces.
[4] The IRB concluded that the Egyptian armed forces are not engaged in a military conflict condemned by the international community for engaging in crimes against humanity or war crimes. The Applicant's general objections to the government did not meet the standard for conscientious objector status.
[5] Despite the best efforts of his counsel, the Court is not convinced that the IRB erred in law or reached unreasonable (much less patently unreasonable) conclusions.
[6] The Applicant argued before this Court that the IRB failed to take into account whether a person could be considered a conscientious objector because he would have to serve a government which, through other agents of the government, engages in torture and other such crimes. While this might be an interesting issue, it was not the basis upon which the Applicant based his claim. The IRB cannot be faulted for not considering an argument not made by any party. Further, there were not sufficient facts before the IRB upon which it could engage in this analysis.
[7] The Applicant also argued before this Court that the IRB did not consider whether service in the armed forces is tantamount to service with internal security forces who are alleged to commit acts of torture, oppression and other types of crimes against humanity. However there is no evidentiary basis upon which to draw this inference and therefore the IRB committed no error.
[8] The IRB cannot be faulted for not considering arguments not made or finding facts not put in evidence.
[9] For these reasons, this application for judicial review must be dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6143-04
STYLE OF CAUSE: MOHAMED SALAH ABDEL HAY EL DEIASTI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 31, 2005
REASONS FOR ORDER: Phelan J.
DATED: June 3, 2005
APPEARANCES:
Mr. Michael Korman FOR THE APPLICANT
Ms. Karen Dickson FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Otis & Korman
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT