MC0-08799

RAD File No. / No de dossier de la SAR : MC0-08799 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision May 25, 2021 Date de la décision Panel Me Murielle Henri Tribunal Counsel for the person who is the subject of the appeal 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 FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX XXXX, is a citizen of Egypt. He alleges a fear for his life by reason of his imputed political opinion. [2] In XXXX 2015, the appellant sheltered his cousin, who is a member of the Muslim Brotherhood. On XXXX XXXX, 2015, police officers arrested the appellant and took him to the police station, where he was interrogated and beaten. The police officers accused his cousin of being a terrorist. On XXXX XXXX, 2015, he left the police station thanks to his brother-in-law. On XXXX XXXX, 2015, he left Egypt for South Korea, where he made an asylum claim that was refused. On XXXX XXXX, 2017, he was deported to Egypt. On XXXX XXXX, 2017, police officers went to his parents' home looking for him, but he was not there. On XXXX XXXX, 2017, the appellant left Egypt for Canada. After his departure, the police continued to show up at his relatives' homes to ask questions about him. [3] On July 14, 2020, the Refugee Protection Division (RPD) rejected his refugee protection claim on the ground that the appellant is not credible. DETERMINATION [4] The appeal is allowed. I refer the matter to the RPD. ANALYSIS [5] My role is to review all of the evidence and establish whether the RPD's decision is correct.1 The determinative issue is credibility. Asylum in South Korea [6] In its decision, the RPD drew a negative inference from the appellant's failure to provide a copy of the written account that he submitted with his asylum claim in South Korea. When the RPD asked him if he had to write an account such as the one for his refugee protection claim in Canada, the appellant replied yes.2 When he was asked if he had a copy, the appellant explained that he did not have a lawyer in that country, that he wrote his claim in the immigration office, and that he needed to check whether he had a copy. In his memorandum, the appellant submits that the asylum claim process is different in South Korea; therefore, he never had such a document. [7] Although the appellant is contradicting himself between his memorandum and his testimony, I am of the opinion that this issue is peripheral to his claim. I understand that the account he provided for his asylum claim in South Korea could have corroborated his statements, but in my opinion, the fact that he could not or did not provide a copy does not necessarily undermine his credibility. [8] Consequently, the RPD erred in drawing a negative inference from the appellant's failure to submit the written account that he provided for his asylum claim in South Korea. Canadian visa application [9] In its decision, the RPD drew a negative inference from the appellant's failure to mention in his Canadian visa application that he had been deported from South Korea. As part of his visa application, the appellant submitted a letter from his employer in Egypt stating that he was in South Korea for work. In his memorandum, the appellant submits that he could not mention that he had been deported, because this information could have negatively impacted his visa application. He also adds that he never submitted a fraudulent letter from his employer in support of his visa application. [10] In my view, the appellant's explanation is plausible. The appellant may have chosen not to include this information in order to improve his chances of obtaining a Canadian visa. In addition, the appellant submitted documentation from the South Korean authorities in evidence. There is no basis for me to state that these documents are fraudulent. The appellant has documentary evidence that he made an asylum claim in XXXX 2015 in South Korea and that this claim was refused in XXXX 2016. Lastly, the fact that he did not mention in his visa application that he had been deported does not have an impact on the basis of his alleged fear in Egypt. [11] Consequently, the RPD erred in drawing a negative inference from the appellant's failure to mention in his visa application that he had been deported and that there is a contradiction between his visa application and his written account as to why he was in South Korea. Delay in claiming refugee protection [12] The RPD concluded that the appellant's behaviour was inconsistent with that of someone who fears for his life because he did not claim refugee protection as soon as he arrived in Canada. The appellant states that, initially, he wanted to obtain a work permit that would allow him to remain in Canada and that based on his experiences in South Korea, his plan was to look for another way to stay in Canada. Lastly, he alleges that a three-month delay is not unreasonable. [13] In my opinion, the fact that the appellant did not claim refugee protection as soon as he arrived in Canada does not establish a lack of subjective fear. In addition, he adequately explained the reasons for not making a claim as soon as he arrived and, in my opinion, those reasons are plausible. Lastly, it is established case law that the delay in claiming refugee protection is not a determinative factor.3 In this case, the delay was less than three months. [14] Consequently, the RPD erred in concluding that the appellant's behaviour was inconsistent with his alleged fear. The appellant's cousin's religious and political convictions [15] The RPD concluded that the appellant failed to establish that his cousin was a member of the Muslim Brotherhood. It stated that the appellant did not provide any police documents that could have established the cousin's involvement. In addition, it concluded that it is unlikely that the appellant's father sheltered his cousin for 11 years without experiencing any problems, whereas the appellant sheltered him for only a few days and was persecuted for that reason. In his memorandum, the appellant submits that his cousin was targeted in 2013 after participating in a protest against the XXXX 2013 coup d'état, and that he did not hear from him between XXXX 2013 and XXXX 2015. His cousin reappeared in XXXX 2015 and he sheltered him. He adds that it is impossible for him to obtain documentation because the Muslim brotherhood has been considered an illegal movement since 2013 and was dissolved. He also states that he has no contact with his cousin. [16] I am of the opinion that the RPD erred. During the hearing, the appellant explained that he never received an arrest warrant and that there is no court case against him.4 Therefore, if those documents do not exist, the appellant cannot submit them in evidence. In his written account,5 the appellant explains that his cousin's problems began after the coup d'état in 2013. Therefore, despite the fact that the appellant's father sheltered the cousin for 11 years, I am of the opinion that his father may not have been persecuted, since his cousin's problems had not yet begun when he was sheltering him. Moreover, a few months after his problems began, his cousin left the appellant's parents' home and they did not hear from him for two years. Lastly, as mentioned by the appellant in his memorandum, the National Documentation Package (NDP) states that the Muslim Brotherhood is banned and listed as a terrorist group in Egypt. Many of its members, particularly senior figures, have either been imprisoned, been sentenced to death or are living in exile.6 Therefore, in such circumstances, it is possible that the appellant does not have any evidence of his cousin's political and religious convictions. [17] Consequently, the RPD erred in drawing a negative inference from the appellant's failure to submit evidence of his cousin's political or religious convictions. Arrest at the airport [18] The RPD noted a contradiction between his written account and his Basis of Claim Form (BOC Form). He states in his BOC Form that he was not arrested, whereas he testified during the hearing that he was interrogated when he returned to Egypt after he had been deported from South Korea. In addition, the RPD did not find it credible that after he had been arrested, the police returned his passport and let him go. In his memorandum, the appellant submits that this was a routine examination, not an arrest. He adds that the RPD failed to consider the documentary evidence, which states that it is possible to leave the country through bribery and that is what he did: his brother-in-law paid bribes so that he could leave the country. [19] When he was asked about the contradiction, the appellant answered that his interrogation was related to his deportation and that there were three other passengers on the airplane who had been deported and who were interrogated. He added that he did not think of mentioning this in his BOC Form because his interrogation was not related to his refugee protection claim.7 [20] I am of the opinion that the RPD erred. There is a difference between an arrest and an examination. Customs officials sometimes decide to examine individuals and interrogate them without arresting them. In addition, the appellant clearly stated that he was interrogated because he had been deported and not because of his imputed political opinion. In my view, this explanation is plausible. [21] Despite that, I find that the appellant is not credible on this aspect of his story. According to the documentary evidence, the Egyptian government exercises tight control over the country's entry and exit records, including "warning lists" of individuals of interest for political reasons. Individuals on a control list are not allowed to leave Egypt. This can include people being sought by the police, people convicted of certain offences and people with political problems.8 Although the documentary evidence states that the authorities are not interested in Egyptian involuntary returnees,9 I am of the opinion that when the appellant arrived from South Korea, the authorities should have been interested in him because, according to his statements, he was a person of interest to them. The appellant stated that he was interrogated and beaten for seven days because he had sheltered his cousin who is a member of the Muslim Brotherhood. Therefore, if the appellant had been a person of interest to the Egyptian authorities, on a balance of probabilities, he likely would have been detained or arrested when he returned to Egypt after he had been deported. However, this did not happen. Therefore, I draw a negative inference about the appellant's credibility. [22] After analyzing the entire record and the NDP, I am of the view that this matter must be referred to the RPD for re-determination of the refugee protection claim and the appellant's credibility. The RPD made significant errors with respect to the appellant's credibility. In addition, the RPD did not examine the facts that are central to his refugee protection claim. Therefore, I cannot render a final decision in this case without holding an oral hearing. In these particular circumstances, I am of the opinion that the RPD will be in a better position than the RAD to consider this refugee protection claim in its entirety. CONCLUSION [23] The appeal is allowed. I refer the matter to the RPD for re-determination by a differently constituted panel. INSTRUCTIONS TO THE REFUGEE PROTECTION DIVISION [24] The RPD should examine the facts that gave rise to the appellant's fear, the circumstances in which he was arrested, and whether any events related to his fear occurred in Egypt while he was in South Korea. (signed) Murielle Henri Murielle Henri May 25, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Recording of the hearing before the Refugee Protection Division (RPD) on February 13, 2020, around 01:17:00. 3 Gavryushenko v. Canada (Citizenship and Immigration), 2000 CanLII 15798 (FC), [2000] FCJ No. 1209, at paragraph 11; Gonzales v. Canada (Citizenship and Immigration), 2010 FC 1292 (CanLII); Lopez v. Canada (Citizenship and Immigration), 2014 FC 102 (CanLII); Sosa v. Canada (Citizenship and Immigration), 2014 FC 428 (CanLII); Sun v. Canada (Citizenship and Immigration), 2015 FC 387 (CanLII). 4 Recording of the hearing before the RPD on February 13, 2020, around 01:22:00. 5 SPR-1, RPD record, appellant's written account, at paragraphs 20 to 30, at page 17. 6 SAR-1, National Documentation Package (NDP) on Egypt, April 16, 2021, Tab 4.2: Country Policy and Information Note Egypt: opposition to state. Version 1.0. United Kingdom. Home Office. July 2020, at pages 7, 8 and 30. 7 Recording of the hearing before the RPD on February 13, 2020, around 01:17:00. 8 SAR-1, NDP on Egypt, April 16, 2021, Tab 14.1: Exit and entry procedures at airports and land borders; incidence of bribery of Egyptian border officials to facilitate departure by individuals with fraudulent travel documents or..., Immigration and Refugee Board of Canada (IRB), December 2, 2013, EGY104665.E, at pages 5 and 6. 9 Ibid., Tab 14.2: Exit and entry procedures at airports and land borders (2017-September 2019). IRB, September 10, 2019, EGY106352.E, at page 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08799 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français