MB6-07824

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. / No de dossier de la SAR : MB6-07824; MB6-07825 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 1, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Odette Desjardins Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, the appellants, are Egyptian citizens and are appealing against the decision of the Refugee Protection Division (RPD). The appellants have presented new evidence and are asking that a hearing be held. They submit that the RPD erred in rejecting their refugee protection claims, notably by finding that an internal flight alternative is available to them (IFA). [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination of the RPD and substitutes a determination that, in its opinion, must be made today in light of all the evidence, namely, that the appellants are refugees under section 96 of the IRPA. I. BACKGROUND A. Alleged facts [3] In their Basis of Claim Forms (BOC Forms), the appellants state that because of their faith as Coptic Christians, they fear persecution in Egypt at the hands of extremists who hate Copts.1 [4] In addition to their BOC Forms, the appellants, then referred to as the claimants, filed several documents as evidence before the RPD.2 B. RPD decision [5] The hearing before the RPD was held on November 18, 2016, and the decision rejecting the refugee protection claims was rendered on November 30, 2016. Although the appellants may have been victims of incidents targeting them personally in XXXX, the RPD found that, in any event, they had an IFA available to them in Cairo.3 II. GROUNDS OF APPEAL AND DECISION SOUGHT [6] In their memorandum, the appellants submit that the RPD erred in rejecting their refugee protection claims, notably by finding that an IFA was available to them. They refer particularly to documents concerning an attack on Cairo's Coptic cathedral in December 2016, where 25 people were killed and dozens more were injured. [7] To conclude, the appellants are asking the RAD to set aside the determination of the RPD and grant them refugee status or to refer the matter to a differently constituted RPD panel.4 III. EVIDENCE PRESENTED ON APPEAL [8] In their appeal record and, subsequently, when making applications based on sections 29 and 37 of the RAD Rules,5 the appellants presented several pieces of evidence regarding the situation of Copts living in Egypt and a few pieces of evidence concerning them personally. [9] In Singh, the Federal Court of Appeal holds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD. It also holds that the criteria set out in the case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question. In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances. Its role is not to provide the opportunity to complete a deficient record, but to allow errors that the RPD may have made to be corrected.6 [10] That said, the Federal Court of Appeal also states that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.7 Given, on the one hand, the time that has passed since the RPD decision, that is, almost two years, and, on the other hand, the various events that have occurred in Egypt since then, I find that there is cause to be flexible here. Consequently, without needing to conduct an in-depth analysis of each piece of evidence presented on appeal; having read them, I find that they are credible and relevant and that they meet the criteria set out in subsection 110(4) of the IRPA. IV. HOLDING A HEARING BEFORE THE RAD [11] In their memorandum and in the applications made subsequently, the appellants ask that a hearing be held before the RAD, notably to answer the questions raised by the new evidence filed on appeal. [12] Under subsection 110(6) of the IRPA, the RAD has discretion as to whether or not to hold a hearing, if the evidence admitted on appeal raises a serious issue with respect to the credibility of the appellants, is central to the decision with respect to the refugee protection claim, and, once accepted, it alone would justify allowing or rejecting the refugee protection claim. [13] In my opinion, there are no grounds for holding a hearing in this case, given that the determinative issue is whether an IFA is available in Egypt today for people who, like the appellants, are Coptic Christians and that this analysis may be conducted in light of the documentary evidence. V. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [14] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a particular advantage in assessing the credibility of or weight to be given to the oral evidence before it, the RAD must then apply the reasonableness standard of review, modified to apply to the RAD context.8 [15] Taking into account the time that has passed since the RPD decision, that is, nearly two years, and taking into account the various events that have occurred in Egypt since then, I find that the RPD did not enjoy any particular advantage and that the standard of review to be applied is that of correctness. Having applied that standard of review, my finding is that the RPD decision regarding the availability of an IFA for the appellants is not the one that should have been made and that, in the circumstances, I may substitute a decision that grants the appellants refugee status. Here is why. [16] In Huruglica, the Federal Court of Appeal recalls that the very first objective of the IRPA is to recognize that the refugee protection program is, in the first instance, about saving lives and offering protection to the displaced and persecuted, within the framework of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. Citing Robert Thomas, a specialist in the field, the Court also suggests that decision-making in respect of refugee protection claims is perhaps the most problematic adjudicatory function in the modern state.9 I find it useful here to reproduce the relevant passage of the work in question: In summary, asylum decision-making is notoriously difficult, perhaps the most problematic adjudicatory function in the modern state. Its superficial simplicity conceals a mass of detailed, difficult, and very problematic factual and legal issues. Determining who is in need of international protection is an essentially evaluative or interpretative appraisal of evidential material of many kinds and qualities against the eligibility criteria of asylum. As Sedley LJ has observed, asylum decision-making is not a conventional lawyer's exercise of applying a litmus test to ascertained facts; 'it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which though it has legal and linguistic limits, has a broad humanitarian purpose.10 [17] I am therefore conducting this analysis by remaining aware of the requirements inherent to the role of the decision-maker in this area, while bearing in mind the fundamental objective of the IRPA. [18] In its decision, the RPD analyzed the evidence before it at that time. Based on that evidence, it concluded that an IFA was available to the claimants in Cairo. Unfortunately, in my opinion, subsequent events demonstrate that it is not reasonable to ask the appellants to go and settle in Cairo. [19] A person who claims refugee protection must establish that they have a well-founded fear of persecution for any of the reasons set out in the IRPA,11 and that they are targeted for persecution, either personally, or as a members of a particular social group.12 In this case, the RPD never questioned the claimants' membership in the social group of Coptic Christians living in Egypt. The documentary evidence made available after the RPD had rendered its decision appears to me to be very clear on the situation experienced by the members of that social group, namely that they are discriminated against in laws and in practice, and they face numerous instances of forced removals, physical assaults and terrorist attacks, which are committed throughout the country, including Cairo. Furthermore, the authorities are unable to provide them with adequate protection, despite their efforts.13 [20] In this context, I conclude that the IFA is not a viable option for the appellants. Consequently, I find that I may substitute the determination of the RPD by a determination allowing the appellants' refugee protection claim, with the understanding that, in my opinion, they have established that, because of their membership in the social group of Coptic Christians living in Egypt, they have a well-founded fear of being persecuted in the future if they had to return to live in their country of origin. CONCLUSION [21] For these reasons, I set aside the determination of the RPD and substitute one that must be made today in light of all the evidence, namely, that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are Convention refugees under section 96 of the IRPA. [22] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette November 1, 2018 Date IRB translation Original language: French 1 The Basis of Claim Forms (BOC Forms) are reproduced on pages 10 to 33 of the RPD record. 2 These documents are reproduced on pages 282 to 453 of the RPD record. 3 RPD Reasons and Decision, November 30, 2016, pages 3 to 9 of the RPD record. 4 Appellant's memorandum, January 9, 2017, pages 12 to 16 of the appeal record. 5 RAD Rules, SOR/2012-257. 6 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 7 Ibid., paragraph 64. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. X (Re), 2017 CanLII 33034 (CA IRB). 9 Huruglica, supra, footnote 8, paragraph 53. 10 Robert Thomas, Administrative Justice and Asylum Appeals. A Study of Tribunal Adjudication, Oxford and Portland, Oregon, Hart Publishing, 2011, 314 pages, page 48, citations omitted. 11 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, paragraph 24. 12 Osame Fi v. Canada (Minister of Citizenship and Immigration), No. IMM-2091-06, Martineau, September 19, 2006; 2006 FC 1125, paragraphs 13, 14 and 16. 13 On appeal, the appellants presented several documents concerning these issues. I will only cite the following document, which appears to me to clearly summarize the overall situation: Immigration and Refugee Board of Canada (IRB), National Documentation Package (NDP) on Egypt, June 29, 2018, Tab 12.8, Research Directorate, IRB, Egypt: Situation of Coptic Christians, including treatment; availability of state protection (2016-May 2017), EGY105805.E, June 20, 2017, 19 pages. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02904 RAD.28.07 (2015.06.02) Disponible en français RAD File No. / No de dossier de la SAR : MB6-07824; MB6-07825 6