TB7-04030

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB7-04030 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 18, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jane G. Rukaria Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "Appellant"), a citizen of Egypt, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that he cannot return to Egypt due to dispute with his landlord whom the Appellant alleged is a very powerful person who has threatened the Appellant's life. The Appellant also believes that he has been "singled out" because of his religion. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on October 25, 2016. A negative decision was rendered in writing on November 10, 2016. The RPD found that the Appellant was unable to establish his claim with trustworthy and credible evidence. [4] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Appellant's Issues [5] The Appellant makes no submissions in its list of issues that the RPD erred but the Appellant's list of issues asks whether based on the information provided in this appeal, the Board ought to make a decision to change the decision of the RPD and whether the documents provided are new under section 110(4) of the IRPA. ANALYSIS The Role of the RAD [6] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [7] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [8] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [9] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [10] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [11] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [12] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [13] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [14] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Admissibility of Evidence Submitted on Appeal [16] Section 110(4) of the IRPA provides that the appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. [17] It is for the appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the appellants.9 Application of Section 110(4) [18] Section 110(4) establishes a disjunctive test.10 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [19] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.11 [20] As the RAD understands it, section 110(4) provides the appellants with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the appellants could not have been expected to present it to the RPD. [21] Section 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.12 [22] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.13 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [23] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [24] In Singh,14 the Federal Court of Appeal held that there is no valid reason why the RAD cannot apply the criteria set out in Raza15 to the assessment of new evidence. While Raza predates the introduction of IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance and newness, in addition to any express statutory provisions.16 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).17 [25] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [26] Relevance is a basic condition for the admissibility of any piece of evidence.18 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [27] In addition to credibility and relevance, the factors in Raza include "newness". Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.19 [28] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. The Appellant's proposed new evidence submitted pursuant to Section 110(4), IRPA 1) News articles marked as Exhibit 1, and 2) Updated National Documentation Package (NDP) dated 31 March 2017. [29] Each of these two documents meet the test of section 110(4) of the IRPA in that they are all dated after the decision of the RPD. [30] In the case of the news articles in Exhibit 1, each of the articles postdates the decision of the RPD so obviously were not available prior to that decision. Each of the articles speaks about the religious discrimination against Christians in Egypt, some of which definitely amounts to persecution. As these articles do pass the test of 110(4) and are from credible news reporting entities such as the New York Times and are relevant, I will allow them as new evidence. [31] The NDP is obviously new and relevant and very credible. Therefore, it is accepted as new evidence based on the updated documents within it. The Arguments [32] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility. The Appellant argues that the RPD applied the wrong or a confused threshold and test for a claim under sections 96 and 97 of the IRPA. The Appellant directs my attention to paragraphs 22, 24 and 25 of the Reasons and Decision of the RPD and points out that those three paragraphs clearly find the panel accepting the Appellant as credible and that he has a nexus to the Convention on the grounds of religion. The Appellant writes that the claim was eventually denied on the basis of there being no nexus (which would contradict para 25 of the Reasons) as required for a section 96 claim nor was there sufficient evidence to find that the Appellant was a person in need of protection under section 97. Further, the panel found, in paragraphs 23 and 24 that the Appellant was a credible witness with a genuine fear of persecution in Egypt for the reasons given by the Appellant. [33] I have read the panel's Reasons and Decision a number of times and I cannot find anything that indicates denial of the claim due to a lack of nexus. However, having read the entire document, I also must disagree with the Appellant. Paragraphs 22-25 do not say that the panel found the Appellant to have a nexus. What they do say is that the panel finds that the Appellant's reasons for his subjective fear have a connection to the Convention on religious grounds. That is entirely different from the panel saying that there is a nexus to the Convention. The panel clearly wrote in paragraph 73 of the Reasons, "For the foregoing reasons, I conclude that XXXX XXXX XXXX XXXX is not a Convention refugee and not a person in need of protection and therefore reject his claim." [34] The Appellant argues that the panel specifically stated that credibility, internal flight alternative (IFA) and state protection were not issues in this case. The Appellant conflates the definition of "issue" with the actual resolution of an issue. The issue of credibility was resolved in favour of the Appellant. The issues of IFA and state protection were discussed. IFA was discussed20 when the panel asked the Appellant whether he could live in Aswan or Alexandria. The issue of state protection was also discussed shortly after IFA was discussed. In both cases, the panel deferred his decision on the availability of either. Shortly before the end of the hearing, however, counsel said to the panel, "Now, IFA is not an issue" (phrased as a question even though grammatically it was a statement). The panel responded, "No." Again, in spite of the grammatical structure, I take this exchange to have been intended to mean that the panel has taken IFA off the table. [35] The Appellant argues that the panel erred when the panel concluded that the Appellant could simply give up his lawsuit in Egypt and he would then be safe. The Appellant argues that the member did not have a grasp of the issues raised in testimony. The Appellant argues that the panel seems to say that is okay for the Appellant's property to be stolen and it is okay that the Appellant does not receive justice in Egypt and the Appellant is bringing problems to himself by insisting on pursuing his rights. This is preposterous. The panel was very sympathetic to the losses of the Appellant and very indignant with the extremely slow pace of the justice system in Egypt. All the panel was doing was asking the Appellant whether he believed that if he dropped his suit, would his problems cease. The Appellant argued that he must fight for his rights and not give up. His property has been in his family since 1923 and he will not simply give it up. However, the Appellant has in fact given up his fight by leaving Egypt and seeking asylum in Canada. [36] The Appellant argues that the police have archived his reports without doing anything. However, in testimony, the Appellant testified that the police investigated, albeit briefly, and reported that there was nothing to do as the Appellant had been evicted legally by court order. [37] The Appellant argues that he cannot get a Christian lawyer to represent him in Egypt; however, the Appellant testified that he only asked two Christian lawyers who refused to represent him. That does not support the allegation that no Christian lawyers will help him. [38] The Appellant has testified that his case is still active in the courts. Even though the wheels of justice are moving at a snail's pace, there is insufficient evidence adduced to support the allegation that the courts are mistreating his case because he is a Christian. [39] At the end of the hearing, the panel spoke on state protection saying that he did not know whether the state protection was available or not and he would have to look at the evidence in that regard. However, as the panel did not make any substantial comment in the Reasons regarding state protection, I will consider that issue off the table. [40] The new evidence presented in Exhibit 1 tells of both discriminatory and persecutory incidents in Egypt. However, the persecutory incidents in the articles all seem to occur in the less populated areas, in villages as opposed to cities such as those in which the Appellant has lived (Cairo, Alexandria and Aswan) and the persecution has been against a few individual Christians as opposed to a large percentage of the nearly 10,000,000 Christians in Egypt. The documents are very supportive of the Appellant's claim of discrimination and again, they do speak to the acts of persecution of a relatively small number of Christians in the Province of Minya. There have been a couple of persecutory incidents even in Cairo, one in which the Islamic State terrorists murdered a number of Christians by bombing a church and another where a number of Christians were killed during a protest in which the military was involved. However, this Appellant has not alleged that he is a member of any protest group and he has not alleged that he or his church has been victimized at all. The only time the Appellant has actually had anything close to religious discrimination rear its ugly head in this case occurred when, some three years or so before the landlord dispute began, a person unrelated to any of that core dispute was unhappy with the Appellant and threatened to send him back to whatever place the Appellant came from, in a box, That, to me, sounds more like an "anti-foreigner" slur than a religious one. [41] Documentary evidence presented clearly shows prevalent discrimination against minorities including Christians; however, there has been insufficient evidence adduced in this claim to support the allegation that the issues suffered by the Appellant had any relationship to his religion or ethnicity. [42] The Appellant never suffered any religious discrimination from his landlord. Some thugs allegedly working on behalf of the Appellant's landlord made slurs regarding the Appellant's background after the Appellant was evicted and refused entry to the apartment in question. However, the core of this case is the dispute between the Appellant and the landlord over a property issue. The worst case scenario is that a crime has been perpetrated against the Appellant due to the threats against his life and his property loss, before and while pursuing his rights. [43] The Appellant argues that all of this dispute is directly linked to his religion. The Appellant argues that he was refused protection only because he is a Christian. The police allegedly closed his cases in both instances without investigation. However, as previously mentioned, the Appellant's testimony was that there was an investigation and the police found that the Appellant had been evicted legally through the courts. The fact that the Appellant has been granted access to the civil courts for his dispute suggests to me that the police, after investigation (however brief that may have been), decided that the Appellant's issue was a civil matter and not a criminal matter. The Appellant errs when he says that he has been denied justice as he is in an ongoing property dispute. As in Canada, civil suits can and do often take years to settle and that is the case regardless of race or religion. There is insufficient evidence adduced herein to suggest that the court delays are anything other than the slow turnings of the wheels of justice. Although the Appellant sincerely believes he is being treated differently by the police and the courts because of his religion, it does not make it a fact. [44] The Appellant writes that there is no rule of law in Egypt for him and that for the law to rule, it must be able to provide a remedy on every occasion in which a right is violated and without delay. This is not realistic in any country. It is an unfortunate fact that justice is delayed everywhere and for almost everyone due to many reasons other than discrimination. [45] In counsel's submissions, counsel argues that the Egyptian justice system has failed the Appellant and if the justice system fails you, then that is persecution. However, the justice system has not at this time failed the Appellant. The justice system may or may not give the Appellant the decision he hopes for at some point in the future; however, at this time, the Appellant's case according to his testimony is still before the courts. As said previously, lengthy delays in civil cases, especially are not uncommon. As an example, a recent Supreme Court of Canada case, Harry Daniels, et al. v. Her Majesty the Queen21 took 16 years to conclude. Daniels was a visible minority person in Canada fighting what he felt was a discriminatory interpretation of Canadian law. That discriminatory interpretation of law deprived Daniels of certain rights, just as the Appellant has been deprived of certain property and his right of occupancy. The RAD is only citing Daniels to show an example of how slowly justice can move in any country for anyone without necessarily having a racial or religious motive behind those slow moving wheels of justice. [46] Counsel further iterated in her submissions (oral) that the Appellant believes that he would be killed had he remained in Egypt and will be killed if he returns. However, the panel made it clear that while accepting that the Appellant believes these things, it does not require the panel to reach that same conclusion. [47] After a fulsome and independent analysis of the evidence adduced, I find that this Appellant has failed to establish that he has or will be persecuted on any Convention ground. I believe that the Appellant has and may continue to suffer some discrimination and the documentary evidence supports that. However, the issue at the core of this claim is a civil matter with possible criminal overtones. Being a victim of crime or of a civil dispute is not persecution as outlined in refugee law. There must be more than a mere chance of risk and a nexus for a Convention reason to meet the standard of section 96. Although religion did appear to give a nexus to the Convention, after a thorough examination of the facts on hand, I find that religion plays such a minor part, if any, in the Appellant's dispute that it does not constitute religious persecution. [48] Counsel argued in her submissions (Memorandum, para 33) that if section 96 is not applicable to the Appellant, then the Appellant submits that he has established that he is a person in need of protection under section 97 of the Act. The Memorandum goes on to say "There is a serious possibility that he will be harmed if as long [sic] as he continues to seek justice in Egypt." To establish a risk under section 97, there must be more than a serious risk, there must be a risk on a balance of probabilities. [49] In this particular case, we have a civil dispute between two men, neither of whom has any public history of violence. If the Appellant were to return to Cairo and continue his lawsuit, which has lasted three years already with no physical harm coming to him (other than the loss of his property for which he launched the suit), I find that there is less than a mere possibility that the Appellant would be persecuted in Cairo. "Less than a mere possibility" is so much of a lower standard than "a balance of probabilities" that a section 97 claim would be impossible to succeed. If there is less than a mere possibility under section 96, a section 97 claim cannot succeed as it requires the much higher standard of "on a balance of probabilities", which the Appellant does not have. Summary [50] In summary, after a somewhat long and fulsome analysis of what I believe to be all of the issues here, I have found that the Appellant is a victim of a civil dispute and a possible crime. The civil dispute is an ongoing dispute currently in the hands of the Egyptian courts. The Appellant has not been denied access to justice as his case is before the courts. The possible crime was looked at by the police and after a somewhat brief investigation, the file was closed for a lack of evidence and the matter referred to the civil courts. Neither of these issues has a nexus to the Convention. [51] I have found that even though there appeared to the Appellant that there may have been a nexus to the Convention, that nexus is not there. The Appellant has testified that at no time did his landlord ever use any sort of derogatory language against the Appellant having to do with the Appellant's religion. I therefore found that the nexus does not exist. [52] As there is no nexus, I looked at the possibility of a section 97 claim. I found that even the Appellant's counsel argued that there was only a "serious risk of being harmed" which is an insufficient risk standard for section 97 claims. I found that there was less than a mere possibility of harm in section 96, which therefore precludes a section 97 from succeeding. Disposition [53] The RAD has found that the RPD decision will stand. CONCLUSION [54] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe May 18, 2017 Date 1 Exhibit P-2, Appellant's Record at pages 55-77. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 9 Refugee Appeal Division Rules, section 3(3)(g)(iii). 10 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 11 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 12 Singh, 2016 FCA 96, para. 54. 13 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 14 Singh, 2016 FCA 96, para. 64. 15 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 16 Ibid, Raza, paras. 13-15. 17 Singh, 2016 FCA 96, para. 64. 18 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 19 Singh, 2016 FCA 96, para. 48. 20 Exhibit RPD-1, RPD Record, Transcript at about 01:30. 21 Harry Daniels, et al. v. Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development, et al., 2014 CanLII 68707 (SCC). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-04030