TB7-19462

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 / Dossier de la SAR : TB7-19462 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 31, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Nastaran Roushan Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) 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 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 alleges that he has had an attempt by the Muslim Brotherhood (the Brotherhood) to recruit him, resulting in his fear of the authorities who believe that he is a member of the outlawed group. Greater details may be found in the Appellant's Basis of Claim form (BOC),1 the attached narrative and by listening to the audio recording of the hearing. RPD's Reasons [3] In its reasons, the RPD found that a number of material inconsistencies and implausibilities in the evidence undermined the credibility of the Appellant. [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection. Appellant's Issues [5] The Appellant raises five issues at the RAD: a. Did the RPD err in assessing Mr. XXXX's profile as being inconsistent with country documentation in respect to the Muslim Brotherhood's recruitment strategy? b. Did the RPD err in determining that Mr. XXXX had been inconsistent in the circumstances surrounding his detention by the police? c. Did the RPD err in finding Mr. XXXX's ability to exit Egypt as implausible and inconsistent with his claim for persecution? d. Did the RPD err in failing to give weight to supporting documentary evidence? e. Did the RPD err in its assessment of the evidence of risk to failed asylum seekers in Egypt? ANALYSIS Determinative Issue [6] The determinative issue in this appeal is the Appellant's credibility. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant submitted new evidence with his Appeal Record. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of his/her claim or 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 of his/her refugee claim. [9] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza3 as subsequently modified by the same court's decision in Singh;4 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [10] The Appellant submits the following two items for consideration: i. An affidavit from the Appellant's previous counsel in Vancouver, XXXX XXXX, dated XXXX XXXX, 2017;5 and ii. An affidavit from the Appellant's previous counsel in Toronto, XXXX XXXX, dated XXXX XXXX, 20176 [11] The Appellant argues that the new evidence could not have been reasonably expected to be disclosed prior to this appeal as it could not be reasonably anticipated that the RPD would fixate on an irrelevant issue to impugn Mr. XXXX's credibility. [12] The affidavit from XXXX XXXX basically confirms that the Appellant was concerned that he should have amended his BOC to include a detention of about two hours, by the police, of himself. Counsel XXXX advised the Appellant that he could speak to this at the hearing and it did not necessitate an amendment to the BOC. [13] Current counsel has argued that the panel "would fixate" on this issue. If counsel XXXX believed that the panel was fixating on an irrelevant issue, then counsel XXXX should have addressed this issue in her submissions at the hearing or should have clarified the issue through questioning of her client at the hearing. The mere fact that the counsel at the hearing chose not to address what is now being called into question by new counsel, is unfortunate; however, it is not new evidence and will not be accepted as such by me. [14] The affidavit from counsel XXXX is virtually the same as the one from counsel XXXX and for the same reasons as above, will not be accepted into evidence. Oral Hearing [15] As no new evidence has been admitted into this appeal, the request for an oral hearing, is dismissed in accordance to subsection 110(6) of the IRPA. Arguments - Recruitment [16] Counsel argues that the panel erred in determining that the Appellant would not have been recruited by the Muslim Brotherhood as he did not meet the profile for recruitment. [17] Counsel argues that the panel relied upon one document in order to come to the above finding. That document was an article7 by Eric Trager for Foreign Affairs magazine, evidence disclosed by the Minister. [18] Eric Trager is an expert on Egyptian politics and on the Muslim Brotherhood. Trager is a renowned scholar and author of the book, "Arab Fall: How the Muslim Brotherhood Won and Lost Egypt in 891 Days", among others. [19] Counsel quotes other parts of Trager's book in which Trager speaks to the tensions within the Brotherhood. Counsel also draws quotes from an article from Time Magazine, which speaks to the internal struggles within the Brotherhood. What the Time Magazine article does not speak to are the recruitment methods of the Brotherhood. [20] Counsel argues that Trager's book was 3 or 4 years old at the time of the hearing and methods may have changed (recruitment). Although that is certainly possible, the only evidence I have before me regarding recruitment methods by the Brotherhood is Trager's book. Counsel cites various sections8 of the Board's National Documentation Package (NDP) on Egypt; however, none of these documents speaks to the recruitment practices of the Muslim Brotherhood. One item does speak to how other organizations and even factions of the Brotherhood are recruiting Brotherhood members, but none of the documents refutes the findings of Mr. Trager, who is considered to be a foremost expert on the Muslim Brotherhood. Counsel may speculate on how recruitment has or may change within the Brotherhood; however, with no evidence to refute the Minister's evidence, I find that the recruitment of new members into the Muslim Brotherhood is very selective and that the profile of the Appellant and the means by which he claims to have been approached for recruitment do not ring true. [21] I find that the panel did not err in its assessment of the Appellant's profile in regards to being recruited by the Muslim Brotherhood. Police Detention [22] Counsel argues that the panel's finding that the Appellant was inconsistent in respect of his detention by the police is unreasonable. Counsel argues that the panel either misunderstood the events underlying the claim for persecution or erred in making a negative credibility finding based on an irrelevant event. The event in question was the two-hour detention of the Appellant by police in a totally unrelated incident. In that incident, the police were pursuing some individuals for an unknown reason when the Appellant, by chance, became entangled in the pursuit and was arrested with the others being chased. After two hours, the Appellant was released without charges. This event had nothing to do with the alleged persecution, recruitment by the Brotherhood or anything else to do with the Appellant's claim. For that reason, even though the Appellant had mentioned the event to two different lawyers representing him at different times, it was not even in his BOC as it was not related in any way to the claim. [23] The panel had noted that regarding the above incident, when described to the CBSA agent, the Appellant said that he was picked up on the street on his way to work whereas in the BOC, the Appellant speaks about the police coming to his shop and arresting him. [24] The panel put the alleged inconsistencies to the Appellant who explained that these were two separate events, the one being irrelevant to the claim (two-hour detention). The Appellant explained that he had asked both former counsels whether that event should be in his BOC and was told that, as it is not related in any way to the claim, it was unnecessary to include it and if asked, the Appellant could explain it at the hearing. [25] The panel did not accept this explanation and cites the requirement of the BOC to include "everything that is important for your claim". The panel found it unreasonable that the Appellant would omit this unrelated detention from his BOC. I do not. [26] The detention at issue was an incident totally unrelated to the claim. It was a case of a person being in the wrong place at the wrong time resulting in the Appellant being scooped up mistakenly by police and released as soon as the police error was realized (with two hours of being detained). This event is not relevant to the claim in any manner. There is no inconsistency in this issue. The panel erred in making a negative inference over this non-issue. Departure from Egypt [27] Counsel argues that the panel erred in its analysis of the issue of how the Appellant could leave Egypt while on bail. [28] Counsel cites Lachowski9 in which the Court speaks to an issue regarding one having no difficulty leaving a country. However, in that case, the applicant had none of the profiles listed in the NDP as being issues for departing Argentina. [29] That citation does not apply to this case for the following reasons. The Appellant here was a man on bail. The Appellant alleged in his BOC that he was constantly being followed by police. The Appellant had already once been denied boarding of an aircraft and had his passport seized or held by airline authorities. These features indicate that, if they are true, the Appellant is certainly a man of interest to the state. As the panel noted, documents at the Board make it clear that "[i]ndividuals on a control list are not allowed to exit Egypt. This can include persons being sought by the police, persons convicted of certain offences, etc. ... and can include people with 'political problems'."10 [30] Counsel argues that there is no evidence which equates "being on bail, being followed and being asked to report on the activities of the Brotherhood" to being on a "control list". [31] If the Appellant's basic allegations were true, then he would certainly have political problems. Having political problems (being suspected as a member of the Muslim Brotherhood) is on the list of reasons one might be on the "control list". On a balance of probabilities, if the Appellant's allegations are true, he would not have been able to exit Egypt at an international airport using his own identification, as he alleges he did. I concur with the panel that it is not reasonable to accept that a man in Egypt who had been arrested and held for a week by police, was out on bail, was wanted on charges, was under surveillance and who had previously been denied boarding on a flight, would be able to depart Egypt on his own identification. [32] Counsel's last argument on this issue is basically that the state would not interfere with the Appellant's departure because the state would be happy to be rid of him. That is unreasonable. If that were the case, then every terrorist, fugitive or political dissident would be free to leave the country simply so the state would be rid of them. That does not happen and on a balance of probabilities, did not happen in this case, either. [33] I find that the panel did not err in its assessment of this issue. Weighing of other Evidence [34] Counsel argues that the panel failed to give due weight to documentary evidence adduced by the Appellant. Specifically, the panel gave little weight to two court documents,11 which counsel believes support that the Appellant was arrested, detained and charged with belonging to the Muslim Brotherhood. Counsel points to the fact that the first document shows the Appellant attending the court for a charge of vandalism while the second document shows him being released on bail for that charge. Counsel cites the NDP which indicates that a state crackdown on the Brotherhood which occurred in 2013-2014 resulted in arrests of Brotherhood members on charges that included thuggery and vandalism. For that reason, counsel equates the charge of vandalism for this Appellant as proof that he was arrested as a member of the Brotherhood. [35] Without a doubt, the Egyptian authorities used vandalism as one of the charges to hold members of the Brotherhood; however, that is insufficient evidence to convince any reasonable person that every person charged in Egypt with vandalism was so charged as a means of holding members of the Brotherhood. Just because a situation is possible, as it is that the Appellant may have been charged with vandalism because he was a suspected Brotherhood member, it does not make it true. Without supporting documentation to show that the vandalism charge was in any way related to a suspicion of the Appellant's involvement with the Brotherhood, I cannot find that it was so. [36] I find that the panel did not commit any error in regards to this evidence and the weight applied to it. Mother's Letter12 [37] Counsel argues that the panel erred by giving little weight to the support letter from the Appellant's mother. Counsel reminds me that it is what a document does contain that matters as opposed to what it does not contain. I agree with counsel on this issue and have examined the letter accordingly. The letter confirms that the Appellant had been taken more than once, was beaten and imprisoned, and had to pay 5,000 Egyptian Pounds. What this letter contains goes only to confirm that for some unknown reason, at some unknown time and place, the Appellant was detained by the government and needed to pay 5,000 Egyptian pounds to be released. When taken collectively with the above court documents, I can conclude reasonably that the letter is referring to this same incident in which the Appellant has been charged with vandalism. However, that is all I can reasonably conclude from the letter. It is for this reason that, as support of the Appellant's claim of persecution based on the government thinking he belongs to the Brotherhood, the letter has little weight. Return to Egypt [38] Counsel argues that, regardless of the above issues, the RPD erred when it made its assessment of the risk faced by the Appellant as a failed asylum seeker being forcibly returned to Egypt. [39] Counsel directs my attention to the Appellant's package of country conditions13 in which the Australian Refugee Review Tribunal gives advice regarding Egypt. In answer to the question "Is there any information on the treatment of failed asylum seekers?" the Tribunal had the following to report. Limited information was found on the likely treatment faced by failed asylum seekers returning to Egypt. In March, 2006, an official from the Canadian embassy in Cairo advised that his office was "not aware of any cases of rejected refugee applicants, Muslim or Christian, being detained or tortured after being returned to Egypt." A Canadian university professor and a senior fellow at Freedom House's Center for Religious Freedom noted that since refugee claimants are likely to have complained about their situation in Egypt, they could potentially be treated under Article 80(d) of the Egyptian Penal Code, which criminalises the disclosure abroad of "false and tendentious news, statements or rumors on the internal situation in the country. Additionally, the university professor mentioned above advised in 2006 that: Given the arbitrary nature of arrest and detention in Egypt, it is difficult to predict how a returning refugee claimant will be treated. However, if the nature of the claim included ... the broadly-defined crimes of defaming Egypt, apostatizing, proselytizing or receiving funds from foreign sources, this person may well be liable to prosecution. Furthermore, given the ability of security services to do their work with little restraint, claimants may simply be detained and interrogated without formal charge in the attempt to ensure that their case is fully understood by the Egyptian authorities... As a result, there is no certainty that a returning refugee claimant will be detained or intimidated, but neither is there a particularly convincing guarantee against it. [40] Documents both at the Board and in the Appellant's package seem to swing both ways on this issue. [41] It is with extreme concern that I am doing the right thing within the laws at hand when I find that, given the mixed documentation regarding the risk to failed asylum seekers returned to Egypt, there is more than a mere possibility of this Appellant facing persecution as a returned asylum seeker who may have, in the eyes of the security services of Egypt, spoken out against or negatively about the current regime, based solely on the fact that he did seek asylum from Egypt. Summary [42] I find that if I am to err in this decision, it must be on the side of caution, in which I give the benefit of the doubt to the Appellant. I find that the RPD made no errors in law or in fact and that the panel came to a conclusion and decision which was rightfully the panel's to arrive at. However, I have arrived at a different conclusion from my own reasons as explained above. Disposition [43] I have found that the RPD decision will not stand. CONCLUSION [44] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection. (signed) "David Lowe" David Lowe July 31, 2018 Date 1 Exhibit RPD-1, RPD's Record, at pp. 13-26. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Exhibit P-2, Appellant's Record, at p. 46. 6 Exhibit P-2, Appellant's Record, at p. 48. 7 Exhibit RPD-1, RPD's Record, Exhibit 5, at pp. 107-123. 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Egypt, 30 June 2017, at items 1.6, 2.10, 4.7, 4.12, and 4.13. 9 Lachowski v. M.E.I., (1992) 18 Imm.L.R. (2d) 134, 59 F.T.R. 44, at 144. 10 Exhibit RPD-1, RPD's Record, NDP for Egypt, at item 14.1. 11 Exhibit RPD-1, RPD's Record, Exhibit 9, at pp. 212-216. 12 Exhibit RPD-1, RPD's Record, Exhibit 8, at p. 197. 13 Exhibit RPD-1, RPD's Record, Exhibit 10, at pp. 219-225. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19462 RAD.25.02 (July 05, 2018) Disponible en français 12 RAD.25.02 (July 05, 2018) Disponible en français