VB9-09569

RAD File / Dossier de la SAR : VB9-09569 VB9-09570 / VB9-09571 / VB9-09572 Private Proceeding / Huis clos AMENDED Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 4, 2020 (Original and Amended decision) Date de la décision Panel Jillan Sadek Tribunal Counsel for the persons who are the subject of the appeal Erin C Roth Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Jennifer Mensink Conseil du ministre REASONS FOR DECISION AMENDED OVERVIEW [1] The Minister of Citizenship and Immigration and Minister of Public Safety are appealing a decision of the Refugee Protection Division (RPD), dated November 12, 2019 in which it was determined that the Respondents, XXXX XXXX XXXX XXXX (Principal Respondent) and her three children: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX (Associate Respondents), all citizens of Egypt, are Convention Refugees. [2] The RPD relied on the testimony of the Principal Respondent's husband, XXXX XXXX XXXX XXXX (hereinafter XXXX XXXX XXXX), whose claim had been suspended due to admissibility concerns. The RPD found his testimony credible and determined that his family would be at risk based on his allegations. [3] The Appellant asserts that the RPD ought not to have granted refugee protection to the Respondents on the basis of XXXX XXXX XXXX allegations as his claim had been suspended. The Appellant also noted credibility concerns with the Principal Respondent's evidence that the RPD failed to address. Finally, the Appellant asserts that the RPD ought to have examined, of its own accord, whether exclusion might be an issue for the Respondents, given their support for the Morsi administration. [4] The Respondents argue that the Appellant's arguments are baseless and that the RPD did not err in finding them to be refugees. [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 DECISION [6] The appeal is allowed. I send this matter back to the RPD to be redetermined. CONTEXT AND CHRONOLOGY [7] In his Basis of Claim form (BOC) and oral testimony, XXXX XXXX XXXX, the husband/father of the Respondents, explained that he was a leading member of the Egyptian trade unions since 1996 and a leading member of the Freedom and Justice Party (FJP), the political wing of the Muslim Brotherhood. XXXX XXXX XXXX indicated that he and his family supported the party's leader, Mr. Morsi, becoming president after the January 2011 revolution and that he and his family were against the military coup of 2013, during which Mr. Morsi was removed from office. XXXX XXXX XXXX asserts he was targeted by the state authorities and pro-military supporters because of his role in politics. [8] Given the arguments in this case, a chronology of the Respondents' claim for refugee protection in Canada is helpful. XXXX XXXX XXXX 2018: The entire family (the four Respondents along with XXXX XXXX XXXX), entered Canada, using their valid visitor visas for Canada. XXXX XXXX XXXX 2018: the entire family claimed refugee protection, with XXXX XXXX XXXX as the principal refugee claimant. November 7, 2019: the Minister referred only XXXX XXXX XXXX for an admissibility hearing before the Immigration Division, suspending his refugee claim at the same time. November 12, 2019: The RPD proceeded with the scheduled hearing for the remaining claimants in the family, just 4 days after the notice of suspension would have been received. The RPD questioned XXXX XXXX XXXX as the principal witness for his family's claim, despite the fact that his own claim had been suspended. At the close of the hearing, the RPD rendered an oral decision granting refugee protection to the Respondents. January 8, 2020: The Minister appealed the RPD's decision to the Refugee Appeal Division. February 4, 2020: The Respondents filed their Memorandum in reply. June 11, 2020: The Minister replied to the Respondents' memorandum. XXXX XXXX XXXX 2020: The Respondents filed new evidence. July 24, 2020: The Minister responded to the new evidence submitted by the Respondents. August 25, 2020: The Respondents filed further new evidence. RESPONDENTS' NEW EVIDENCE [9] No new evidence was submitted with the Respondents' initial record. [10] The following pieces of new evidence were submitted later by the Respondents: a. On XXXX XXXX XXXX 2020: A letter from a lawyer in Egypt to the Public Prosecution office dated XXXX XXXX XXXX 2020 was submitted, in which the lawyer states that the Principal Respondent's sister-in-law visited the Respondents' home on XXXX XXXX, 2020 to check on it, at which time she was arrested by police, questioned about the whereabouts of XXXX XXXX XXXX and his family, mistreated and then released. b. On XXXX XXXX XXXX 2020 the following new documents were received: i. An affidavit from XXXX XXXX XXXX, sworn XXXX XXXX 2020, confirming the information in the statement from the lawyer submitted XXXX XXXX XXXX 2020 (item a above). ii. A letter from the Principal Respondent's sister-in-law (sister of XXXX XXXX XXXX), dated XXXX XXXX 2020, confirming the information in the statement from the lawyer submitted XXXX XXXX XXXX 2020 (item a above). iii. A letter from the lawyer, XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2020, confirming the information in the statement he provided to the public prosecutor (item a above). iv. Media article, Egyptian activist Sanaa Seif detained outside prosecutor's office, dated 23 June 2020. v. Media article, Egypt: Human rights activist arrested outside of Public Prosecutor's office, (publication date not provided, but appears to have been written after 22 June 2020). [11] In order for new evidence to be admitted, it must meet the criteria in section 110(4) of the Immigration and Refugee Protection Act (IRPA). This means only evidence that arose after the rejection of the claim, that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection may be admitted. In the present case, the claim was rejected on November 12, 2019. Any new evidence must also meet the tests for newness, credibility and relevance set out in the cases of Singh and Raza.2 [12] Rule 29 stipulates that the subject of the appeal must explain how the new evidence not previously provided meets section 110(4) of IRPA. The RAD must also consider the document's relevance and probative value, any new evidence the document brings to the appeal and whether the subject of the appeal, with reasonable effort, could have provided the document or written submission with their original Respondent's record. [13] I find the new evidence meets the above criteria, given that the events described allegedly occurred after they filed their appeal. I accept that the documents provide new and relevant evidence and that, on their face, there are no credibility concerns. However, as the newly constituted RPD panel will have to re-examine the Respondents' credibility in any event, I do not specifically make any finding as to the credibility of the documents. [14] All of the new evidence has been admitted. APPELLANT'S NEW EVIDENCE [15] The Minister submitted a transcript of the RPD's hearing and a transcript of a Canada Border Services Agency (CBSA) interview of the Principal Respondent which took place on XXXX XXXX XXXX 2019 in which the Principal Respondent affirmed she was not a member of the Freedom and Justice Party (FJP). [16] The Minister's new evidence is admitted. [17] Neither party have requested that I hold an oral hearing. ANALYSIS [18] I have carefully reviewed the entire record, including the new documents and new submissions from both the Respondents and the Appellant. I agree with the Minister that there are significant problems with the RPD's decision and that the matter must be returned for redetermination. The RPD's use of XXXX XXXX XXXX testimony [19] The Respondents' claims are principally based on the allegations made by XXXX XXXX XXXX. The Respondents indicate that, along with XXXX XXXX XXXX, they also participated in the peaceful activities of the XXXX XXXX XXXX 2011 revolution which enabled Mr. Morsi to be elected president and that they demonstrated against the 2013 coup, during which President Morsi lost power. The Principal Respondent also alleged that she was dismissed from her XXXX XXXX position in 2017 because of her husband's activities. [20] The Appellant submits that the RPD did not properly assess the Respondents' claim in their own right. The Appellant asserts that the RPD had no jurisdiction to make findings related to XXXX XXXX XXXX allegations, as his claim was suspended, yet the member did precisely that in focusing on his allegations and his testimony. The Appellant points out that in the RPD's oral reasons, the pronoun "you" is frequently used to describe XXXX XXXX XXXX evidence, as if the RPD had been delivering a decision to him rather than to the Respondents. Furthermore, the Appellants assert that the RPD erred in questioning XXXX XXXX XXXX first rather than one of the actual claimants at the hearing. [21] In reply, the Respondents argue that the RPD did not err procedurally when it decided to question XXXX XXXX XXXX before any of the claimants, as such a requirement would amount to fettering the RPD's discretion. The Respondents, however, admit that they were not asked many questions. In their memorandum, it is written: "The Respondents may not have been asked many questions but did affirm the contents of their Basis of Claim (BOC) forms and the entire evidentiary record was before the Panel."3 [22] In terms of the RPD's errors in its oral decision when it referred to XXXX XXXX XXXX as "you" numerous times, though ostensibly communicating its decision to his wife and children, the Respondents argue: "The RPD clearly comprehended that XXXX XXXX XXXX XXXX was not a claimant before the Panel. While XXXX XXXX XXXX XXXX circumstances were considered, and indeed had to be considered to assess the Respondents' imputed political opinion and risks caused by membership within his family, it was the Respondents who were found to be refugees."4 [23] The Respondents also acknowledge that the RPD did assess XXXX XXXX XXXX credibility. In their memorandum, it is noted: "Did the Member determine that XXXX XXXX XXXX XXXX was credible? Yes. However, his evidence and testimony needed to be assessed in order to determine if the Respondents' imputed political opinion was credible (...) Mr. XXXX XXXX political profile has direct implications for his wife and children. The Member was clear that a family can be perceived to share the same political opinion."5 [24] I agree with the Appellant. Having reviewed the transcript of the hearing and the RPD's reasons, the RPD made credibility findings regarding XXXX XXXX XXXX allegations and concluded that the Respondents were at risk because of his situation - rather than on the basis of their own evidence. The fact that they confirmed their BOCs and were asked a few questions by the RPD does not signify that the RPD based its decision on their evidence. Furthermore, the fact that the RPD used the pronoun "you" referring to XXXX XXXX XXXX when delivering its oral decision to the Respondents is strong evidence that the member was focussing on his situation at the expense of properly analysing the situation of the Respondents. [25] Had their claims been heard together, the RPD's approach would have been an acceptable way of proceeding but given the fact that XXXX XXXX XXXX claim had been suspended, it was not. I note that, given the timing of the Minister's decision to refer XXXX XXXX XXXX to the Immigration Division, neither the Respondents nor the Member likely had adequate time to consider how to proceed with the claims of the other family members. [26] Nevertheless, effectively, the RPD put the proverbial cart before the horse. The very same allegations found to be credible by the RPD would have to be assessed by a member of the Immigration Division at his admissibility hearing, but the Immigration Division member would have the assistance of the Minister questioning the subject as well as the Minister's documentation which would provide for a more fulsome analysis of his evidence - support that the RPD member did not have at its disposal. The procedures at an admissibility hearing would be similar to how the case could have proceeded had the Minister decided to intervene pursuant to article 1F of the Refugee Convention. I am aware that the purpose of a refugee hearing is different from that of an admissibility hearing but in the present case the allegations which may result in inadmissibility are intrinsically linked to XXXX XXXX XXXX risk allegations. To have assessed his allegations and found them credible in the absence of assistance from the Minister, and despite the fact that the RPD was aware that the Minister had a keen interest in the case, was wrong. Due process should not be short-circuited in this way. The Appellant is correct that this error is fatal to the RPD's decision. The Principal Respondent's credibility was not properly assessed [27] Furthermore, the Appellant notes that the Principal Respondent's credibility was not properly assessed by the RPD. [28] In her Basis of Claim form (BOC), the Principal Respondent stated: "I have been a member and volunteer XXXX for Arabic Language for the Party of freedom and justice from XXXX 2011."6 [29] However, at the hearing before the RPD on November 12, 2019, the Principal Respondent stated the following: Q: And I also understand that you were offering some voluntary XXXX with the Freedom Justice Party; is that correct? A: So I was not. I was XXXX at a charity organization called XXXX XXXX XXXX XXXX (phonetic) which was instituted in XXXX, before the revolution and the overthrow. Q: And what was the purpose of this charity? A: So they would support and give assistance to the -- to the people, such as clothing, food, like food banks and other such services. Q: And sorry. How long did you volunteer for this charity organization? A: So just during the weekends, one day in the weekend, two hours. Q: Okay. And -- and for how long? What period of time? How many years did you do this? A: So -- so it was founded in XXXX. Q: Mm-hmm. A: So I -- ever since it's been working until the beginning of the revolution, which was in -- in XXXX.7 [30] The Appellant also submitted a transcript of an interview the Principal Respondent had with the CBSA in XXXX 2019, during which she confirmed that she was not a member of the FJP. The following questions and answers were recorded: Q: Okay. I understand from reading your base of claim that you have membership in the Freedom and Justice Party. A: No, I was not a member in the Freedom Party. I was working with some -- a non-profit organization, ma'am, it's doing some humanitarian work at the villages. I was a XXXX for the kids who lost their parents. That is all. Q: So you never joined the party? A: No, no. Q: Because, when I read it, it seemed confusing because I didn't think that women could join. A: It could be my husband, not me. Q: Okay. All right. Do you have membership in anything? A: No, no. I don't work for the political party. I am an XXXX and a mother of five kids trying to keep busy. Q: Did you, did you get the -­ A: No time. INTERPRETER: No time (indiscernible.) Q You have no time? INTERPRETER: Five kids - COUNSEL: She's busy Q: Did you ever attend any meetings with your husband? A: No, no. Never. Q: Did you have any information in regards to the party? A: After the revolution we heard that there's a big party's been formed, it's called Freedom Party, but it wasn't something important for me in there because there were other parties, different other parties in the country. Q: Did you ever join any of those parties? A: No Q: Did you have any knowledge of - A: Having five kids you don't really have a time for being a member in the party. Three sons and two daughters. Q: did you have any knowledge of the party that your husband joined? A: I don't know the detail, I know there is a party, is like a lot of Egyptian are joining, but no, details I don't know.8 [31] The Appellant submits that the RPD's failure to probe further into this evident contradiction was an error. At no point has the Principal Respondent clarified why she wrote in her BOC that she was a member of the FJP. This contradiction affects her credibility, but even more importantly, as pointed out by the Appellant, membership in the JFP could be an exclusion issue, given its connection to the Muslim brotherhood. I agree with the Appellant that the fact that the RPD did not even turn its mind to exclusion is an error. [32] In their memorandum, the Respondents' argue that there was no allegation before the RPD regarding exclusion that "a reasonable inference" can be drawn from the fact the Minister did not intervene and therefore, the RPD's failure to consider exclusion was not an error.9 [33] I disagree with the Respondents. The RPD is not relieved of the obligation to assess exclusion when the Minister is absent from proceedings. This is not to say that the RPD ought to have excluded the Respondents, rather, the RPD ought to have satisfied itself regarding the Principal Respondent's involvement with the FJP given the statement in her BOC and given the nature of the FJP. The RPD's failure to do so, signifies that there was a failure to both properly assess the Principal Respondent's credibility and the potential for exclusion. The Appellant is correct that this error is also fatal to the RPD's decision. There is insufficient evidence that Egyptian authorities are pursuing the Respondents [34] The Minister submits that the RPD erred by failing to explain how the Respondents would face a forward-looking risk due to their imputed and/or genuine political opinion. In their memorandum, it states: In her testimony, the Respondent, XXXX, stated she was not part of FJP, nor XXXX for it (Appellant's RAD Record, page 41) and her family had not been targeted in Egypt (Appellant's RAD record, page 43). The Respondents were permitted to leave Egypt and return to Egypt and depart again. Other than one incident with a sign being displayed by one of the Respondents during protests in 2013, over 6 years ago, the Respondents have not been targeted by the Egyptian authorities and do not appear to be persons of interest to the authorities. The finding of persecution of the Respondents by way of imputed political opinion is unsupported by the evidence. The Appellant submits the RPD closed its mind and ignored the relevant evidence that the Respondents: * had experienced little to no issues regarding their participation in political demonstrations, beyond one incident with a sign in 2013; and * were residing outside of Egypt since 2015 until 2018; * that it has been 5 and 7 years since the protests they participated in and yet the Respondents were able to attend school, obtain Egyptian passports; and were never targeted despite returning to Egypt in XXXX 2018 after a number of years away; and * were able to depart Egypt again in XXXX 2018.10 [35] The Appellant also submits that the RPD erred when it concluded that the Principal Respondent was dismissed from her XXXX position because of her or her husband's political opinion. The Appellant notes that the "information in the termination letter, dated XXXX XXXX XXXX 2017, states the Respondent was absent from her position and was terminated as of XXXX XXXX XXXX 2016. This is consistent with the Respondent's testimony at the hearing that she went to Turkey from 2015 until 2018 to be with her children (Appellant's RAD Record, pages 41 - 42). As well, she testified that she requested an extension to a vacation when the vacation ended but that request was denied (Appellant's RAD Record, page 40). Based on her testimony and the termination letter, it appears more likely than not that the Respondent was terminated because she was in Turkey and did not return to her employment, instead remained in Turkey with her children. There is no evidence that she was dismissed because of the activities or political opinion of her spouse or that she and her family had participated in protests during the 2011 revolution or in 2013."11 [36] Interestingly, the Respondents appear to agree with the Appellant's point that the RPD's finding regarding her dismissal was not based on the Principal Respondent's testimony. Nevertheless, the Respondents assert that the Principal Respondent was likely dismissed because of her husband's political activities, and that, in any event, the RPD's version of the facts may be equally correct and that, in any event, nothing turns on this issue.12 [37] I agree with the Appellant. The RPD erred in its characterization of the reason why the Principal Respondent was dismissed from her XXXX job. I disagree with the Respondents' argument that this error is irrelevant. Distinguishing between whether a claimant was fired because of her political opinion or because the claimant was outside the country, is a relevant finding of fact to a claim for refugee protection. [38] The Respondents also argue that, in any event, the objective country condition information demonstrates that family members of persons involved with the Muslim Brotherhood and those with imputed political opinions favouring the Muslim Brothers are targeted by the Egyptian authorities.13 Given XXXX XXXX XXXX profile as an influential member of the FJP, argue the Respondents, it is likely that his family will be targeted for arbitrary arrest, surveillance and monitoring. The Respondents note that, the fact they have not been personally targeted yet, does not diminish their forward-looking risk.14 [39] I take the Respondents' point regarding the objective country condition documentation, however, such objective documentation alone is insufficient to establish that the Respondents require Canada's protection as the actual allegations of the Respondents and their credibility has not been properly examined - as outlined in the preceding paragraphs. New Evidence submitted by the Respondents [40] Though I have admitted new evidence which indicates that XXXX XXXX XXXX sister was briefly detained and questioned by Egyptian authorities about her brother and his family's whereabouts in early 2020, I do not find it alters my conclusions about the significant problems with the RPD's analysis of this case as outlined above. The Respondents' claims must still be redetermined. CONCLUSION [41] The appeal is allowed. I send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD This claim should be heard by a newly constituted RPD panel. It may either be heard jointly with the Principal Respondent's husband's claim if he is still entitled to have his claim heard by the RPD after his admissibility hearing, or separately, but in that case, must be principally based on the Respondents' own evidence. The highlighted credibility concerns and the exclusion issue should be carefully assessed. (signed) Jillan Sadek Jillan Sadek December 4, 2020 Date Original decision rendered on December 4, 2020 Reasons and decision amended on December 4, 2020 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 P-1, Respondents' memorandum, Respondents' record, p.9 4 P-1, Respondents' memorandum, Respondents' record, p.10 5 P-1, Respondents' memorandum, Respondents' record, p.10-11 6 RPD-1, Principal Respondent's BOC, RPD record, p. 21 7 M-2, Transcript of RPD hearing, Appellant's record, p.41 8 M-2, CBSA interview, Appellant's record, p.61-63 9 P-1, Respondents' memorandum, Respondents' record, p.10 10M-2, Appellant's memorandum, Appellant's record, p.15 11 M-2, Appellant's memorandum, Appellant's record, p.14 12 P-1, Respondents' memorandum, Respondents' record, p.15 13 P-1, Respondents' memorandum, Respondents' record, p.13 14 P-1, Respondents' memorandum, Respondents' record, p.14 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09569 VB9-09570 / VB9-09571 / VB9-09572 RAD.25.02 (January, 2020) Disponible en français 2 RAD.25.02 (January, 2020) Disponible en français