Ottawa, Ontario, February 2, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
MONA KHALIL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are Coptic Christians from Alexandria, Egypt. They seek judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD) rejecting their claim as Convention refugees or persons in need of protection because: i) their story was found implausible; ii) they could seek State protection and; iii) they had an internal flight alternative (IFA) in Cairo.
[2] The applicants raised numerous issues in their written representations attacking each and every one of the RPD’s findings.
[3] For reasons that follows, the Court is satisfied that the RPD’s conclusion as to the existence of an IFA is valid and contains no reviewable error. Thus, as explained at the hearing, although the Court agrees that the findings in respect of the credibility of Atef Botros and the existence of State protection do contain many errors, these would not be sufficient to justify setting the decision aside.
[4] Finally, the Court finds that there was no breach of procedural fairness when the RPD decided to apply Guideline 7 in this case. A question must however be certified in respect of that issue.
Analysis
[5] The parties were agreed that the existence of an IFA had been properly raised as an issue by the RPD at the beginning of the hearing. It is also not disputed that whether or not a proper IFA exists is essentially a question of fact. It is trite law that, on such issues, the standard of review applicable to the RPD’s decision is patent unreasonableness.
[6] With respect to procedural fairness, there is no need to proceed to a pragmatic and functional analysis. The Court will normally intervene if there has been a breach of the duty to act fairly. (Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195; Canada (Attorney General) v. Sketchley, 2005 FCA 404, [2005] F.C.J. No. 2056 (QL)).
IFA
[7] As mentioned, there is no allegation that the RPD applied the wrong test in its analysis of the IFA. Rather, the applicants argue that the RPD’s analysis of Atef Botros’ explanation as to why he could not be safe in Cairo was too scant and that the RPD failed to refer to some passages of the voluminous documentary evidence before it which corroborated his testimony.
[8] More particularly, the applicants refer to three passages: i) page 600 of the Certified Record refers, according to the applicant, to a similarly situated person (a Coptic Christian priest who has been put on the black list of “the Islamic Group”); ii) page 9 of a lecture about the Coptic Christian Church by Rachad Antonios presented to the RPD on May 10, 2001 (appendix to the applicants’ further memorandum); iii) page 440 and following, a document of Amnesty International, dated September 1998, entitled “Egypt: Killings must stop - clear commitment by armed groups crucial”.
[9] First, it is useful to note that none of these passages were specifically brought to the attention of the RPD at the hearing.
[10] Second, with respect to the first document, Atef Botros never said that he was, or believed himself to be, on any black list. In fact, while discussing the internal flight alternative, his counsel said at page 805 line 24 to 42;
…This doesn’t mean there that Gamat Islamia people are out there actively searching for the applicant. He’s probably gone off their radar screen. For awhile when the iron is hot and things were happening, had just happened, they were actively searching for the applicant, but I dare say they’re not currently doing that, but on the other hand he appears, heaven forbid, if he turns up they’re sure going to remember who this is. There’s no way. There’s no way that they’ll just say, well, forget it, it happened two years ago or three years ago or whatever. There’s absolutely no reason, it would be ludicrous to suggest that.
So if they ever find out that he’s back to Egypt he would turn up because even if he went to live not in Cairo, not in Alexandria, but in upper region, sooner or later people are going to find out who he is, what’s his name, where he’s from…
(My emphasis)
In these circumstances, there was no good reason for the RPD to specifically refer to the person discussed at page 600, especially since it is not even clear that this other incident involved the same extremist organization.
[11] Thirdly, although the words “well organized” are used at page 9 of the second document listed above, it is not in the context of the “Jamaat Islami’s” ability to act anywhere in Egypt or to locate somebody anywhere in the country. It does not relate directly to the issue raised by Atef Botros in his testimony.
[12] The third document refers to numerous killings by two specific armed groups “Al-Gama’a al-Islamiya and Al-Gihad” that occurred between 1992 and 1997 and to the Egyptian government’s mass arrest of suspected members or sympathizers of those groups and the torture of Islamist detainees. It also notes that these two groups mainly operate in Upper Egypt; it is thus not evident at all that these groups are related to the organization that is looking for Atef Botros and his wife Mona Khalil.
[13] It is trite law that the RPD is presumed to have considered the evidence before it. Given the nature and relative relevance and probative value of the documents referred to by the applicants, the Court is not willing to infer from the absence of specific reference to these three documents that the RPD actually failed to consider them. (see “Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL))
[14] There was evidence before the RPD that the applicants had lived for a short period of time in Cairo at the house of Mona Khalil’s uncle without any problem from the “end of June to beginning of August” and that, since their departure from Egypt, the persecuting group had not made any inquiry about their whereabouts with the said uncle in Cairo. In fact, it appears that even in 2005 they were still inquiring about him in Alexandria.
[15] It is undisputed that Cairo is a very large city with over 7 million residents and is located 200 kilometres from Alexandria. In these circumstances and considering the evidence before it, it was not absurd or illogical for the RPD to conclude that the applicants had a valid IFA there.
[16] Furthermore, the Court is satisfied that RPD properly considered Atef Botros’ evidence in that respect.
Procedural Fairness
[17] The applicants’ counsel wrote to the RPD prior to the hearing requesting the permission to proceed first in questioning the applicant. The application of Guideline 7 was raised again at the outset of the hearing. The applicants’ counsel then made it clear that the request was not based on any special circumstances relating to the applicants but rather that it was the application of Guideline 7 per se that, constituted a breach of the RPD’s duty to act fairly.
[18] The RPD decided as follows (certified record p. 696):
…you’ve mentioned there are no special circumstances, there have been many circumstances under which I have allowed that to be reversed and generally those reasons revolve around the sensitive issues as it relates to the claim itself such as gender issues or the emotional state of the claimant and we’re not – the panel is not bound by the rules of evidence.
So under those circumstances where I think the claimant would be more comfortable with the counsel going first then I would definitely rule in that direction, but the legislation provides, simply provides the right to a reasonable opportunity to present evidence and question witnesses and so I would – I would think in this instance that we should abide by the order of proceeding set out in the guidelines since it does not appear there are any extenuating circumstances for these claimants.
[19] In view of the foregoing, the Court is satisfied that the RPD was very well aware that the application of Guideline 7 was not mandatory and it duly exercised its discretion based on the facts of the case before it. There is no evidence that it fettered its discretion.
[20] Also, as in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL), there is no evidence here of any particular vulnerability that would make Atef Botros’ testimony difficult. There was no argument of improper questioning or bias.
[21] This leaves only the assertion that the applicants had an absolute right to start the hearing with an examination in chief.
[22] In cases where this issue has been examined, the Federal Court has consistently held that the fact that an applicant had an oral hearing with the participation of counsel and the right to make oral submissions, fully satisfies the participatory rights required by the duty of fairness and that Guideline 7 does not, in itself, breach that duty (see for example Benitez, above at para. 72 to 84, 128, 237 and Cortez Silva v. Canada (Minister of Citizenship and Immigration), 2005 FC 738, [2005] F.C.J. No. 920 (QL), para. 13 to 27).
[23] In this case, the Court is convinced that the applicants had the opportunity to fully present the facts supporting their claims. There was no breach of procedural fairness.
Credibility and State protection
[24] Although this application is dismissed, it is important to mention again, because this may have an impact on the analysis of other applications (such as a PRAA) that could be filed by the applicants in the future, that the conclusions of the RPD in respect of the credibility of the applicants and the existence of State protection are flawed and should not be relied upon.
[25] Among other things, the RPD totally misconstrued the medical certificate provided by the applicant as well as his evidence as to the event to which it relates. It also failed to consider the testimony of Atef Bostros’ mother-in-law put forward to corroborate part of the story that was found implausible. Such finding of implausibility was itself based on questionable inferences. For example: that it was not plausible that the Coptic Christian family of one of the kidnapped girls would not complain to the police before going to their church for help. However, there was documentary evidence indicating that similarly situated families had been harassed by the government and by the police and this was not considered.
[26] In respect of State protection, the analysis is insufficiently detailed and does not relate to the personal circumstances of the applicants. For example, the RPD considered as part of its analysis that the claimant had failed to approach the police in regard to the kidnapping. This kidnapping had absolutely nothing to do with his own need for protection. Whether or not the police could protect the girl who was kidnapped and whom Atef Botros helped is irrelevant to the ability of the state to protect him.
[27] In their memorandum, the applicants had asked that the Court certify all the questions certified in Benitez, above. At the hearing, they agreed that only the first two questions could be relevant here. Those are:
1) Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants’ right to be heard and right to counsel?
2) Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice?
[28] The Court notes that the respondent stated that in his view the law is clear in that respect but he acknowledged that the Federal Court of Appeal has not yet had the opportunity to consider such questions.
[29] Like Justice Richard Mosley, the Court finds that these questions are of general interest and that they could be determinative. It is also appropriate to use consistent language in the formulation of certified questions.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
2. The following questions are certified:
a) Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants’ right to be heard and right to counsel?
b) Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice?
“Johanne Gauthier”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1177-06
STYLE OF CAUSE: ATEF BOTROS
MONA KHALIL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: JANUARY 23, 2007
REASONS FOR ORDER: GAUTHIER J.
APPEARANCES:
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Jack C. Martin
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Judy Michaely
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SOLICITORS OF RECORD:
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Jack C. Martin Barrister & Solicitor Toronto, ON
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John H. Sims, Q.C. FOR APPLICANT Deputy Attorney General of Canada
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