TB5-11481

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 : TB5-11481 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 2, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Rodney L Woolf Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Egypt, is appealing the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She has submitted new evidence in support of her appeal, but has not requested an oral hearing. The Appellant has asked the Refugee Appeal Division (RAD) to set aside the RPD's decision and find her to be a Convention refugee or a person in need of protection. [2] The Appellant's son was designated her representative (DR) at her refugee determination hearing and testified in her place. On file is a letter1 from the Appellant's doctor in Canada stating that she "Is developing slowly progressive Alzheimer's dementia. A little confused. Sometimes disoriented to time and place." And that "She may not be able to give evidence at her hearing..." DETERMINATION [3] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Appellant is a Convention refugee pursuant to Section 96 of the IRPA. BACKGROUND [4] The Appellant alleged in her claim for refuge protection that, upon return to Egypt, she will be persecuted because she is a Coptic Christian and elderly, and because there is little or inadequate protection from authorities. [5] In a decision of October 7, 2015, the RPD rejected the claim, finding that the Appellant's desire to live in Canada is not motivated by fear but by a wish to be with her family [in Canada], which is not a ground for refugee protection. [6] The Appellant submits the following issues2 as grounds for appealing: a) There was no evidence before the RPD which would cause it to doubt that the Appellant is a Coptic Christian. b) The RPD erred on a question of law when it did not deal with the issue of the well-foundedness of the claimant's fear of persecution and concluded that the Appellant will not face a serious possibility of persecution upon return to Egypt. c) The RPD erred in rejecting entire evidence, oral or documentary, by focusing on inconsistencies not central to the claim. d) The RPD has erred in failing to consider or give sufficient weight to evidence corroborating the Appellant's story and describing conditions in Egypt. [7] For these reasons, the Appellant requests that the RAD set aside the RPD decision and substitute it with a decision that the Appellant is a Convention refugee or a person in need of protection. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] 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 expected in the circumstances to have presented, at the time of the rejection. [9] 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. Application of Section 110(4) [10] The RAD must consider whether the proposed new evidence arose after the rejection of the refugee claim, whether it was reasonably available prior to the rejection of the claim, and whether the Appellant could reasonably have been expected to have presented the evidence to the RPD prior to the rejection of his claim. [11] The following evidence was submitted by the Appellant to the RAD: a) A Letter from Father XXXX XXXX, the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Coptic Orthodox Church. 3 [12] The RAD has considered Father XXXX letter and noted that it is dated October 26, 2015 which is nearly three weeks after the RPD's decision. While the letter could easily have been obtained prior to Appellant's refugee hearing, the RAD finds that the Appellant has reasonably concluded that a letter from her pastor in Canada would not have been required to corroborate her contention that she is a Coptic Christian. [13] The Appellant had self-identified as a Coptic Christian in Question 1(f) of her Basis of Claim (BOC). The DR testified that the family, including the Appellant, had practised their faith as Coptic Christians in Egypt, and both the Appellant's birth certificate as well as the death certificate of the her husband identify them as Christians. [14] The RPD indicated during the hearing that people who have a claim with a religious component often present a letter from their church. The RPD has not directly stated that it doubted that the Appellant was a Coptic Christian. It did indicate in its Reasons and Decision, however, that "With respect to religious documentation, this claim was somewhat deficient."4 It also stated that it was reasonable to expect the Appellant to provide some documentation to substantiate that the Appellant was and is a practicing Coptic Christian.5 [15] The RAD finds that there was sufficient credible evidence provided at the hearing to support the Appellant's identity as a Coptic Christian. It also finds that it was not unreasonable for the Appellant not to have provided a letter from her pastor in Canada, believing that she had provided sufficient evidence to support her identity as a Coptic Christian. The RAD therefore finds the letter from the Appellant's pastor in Canada, Father XXXX XXXX, to be admissible. ROLE OF THE RAD [16] The RAD finds that the recent Federal Court decision, in Huruglica,6 provides guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [17] 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. The RAD will recognize and respect the credibility findings of the RPD. ANALYSIS OF THE MERITS OF THE APPEAL There was no evidence before the RPD which would cause it to doubt that the Appellant is a Coptic Christian. [18] The Appellant submits that the RPD erred when it questioned the Appellant's identity as a Coptic Christian. The Appellant submits that there was overwhelming evidence before the RPD to conclude that in fact the Appellant was and is a practicing Coptic Christian. [19] The RAD agrees with the Appellant's submission and, in light of the new evidence and for the reasons already stated, finds that the Appellant was and is a practicing Coptic Christian. The RPD erred on a question of law when it did not deal with the issue of the well-foundedness of the claimant's fear of persecution and concluded that the Appellant will not face a serious possibility of persecution upon return to Egypt. [20] The RPD found that the Appellant's delay in claiming refugee status indicated that her desire to live in Canada was motivated by a wish to be with her family and not by fear. The RPD further found that it is not credible that the Appellant's son, who is very well-educated, would not be aware that numerous Coptic Christians are accepted in Canada as Convention refugees. The RPD concluded that there is not a serious possibility of persecution should the Appellant return to Egypt. [21] The Appellant submits that a reasonable explanation for the delay in claiming was provided. The Appellant's visa had been extended and a Humanitarian and Compassionate (H&C) application was subsequently made. After the H&C application was rejected, a claim for refugee protection was then initiated within a very short period of time. [22] When asked by the RPD: "...why was there a four and a half year delay in claiming refugee status?" the DR replied: "We were not aware of the option of...and the laws of the refugee in Canada, neither me nor my brother, until we consulted with a lawyer, then we learned...learned about the process."7 The RAD finds that both the Appellant and the DR provided a reasonable explanation for the Appellant's delay in making a claim for refugee status in Canada. The DR and his brother had taken steps to keep their mother in Canada, and when the H&C application was rejected, they then consulted a lawyer who advised them to have the Appellant make a claim for refugee protection. The RAD also finds speculative the RPD's finding that it is not credible that the DR, a well-educated Coptic Christian, should have been aware that "numerous claimants who practice the Coptic Orthodox Christian faith are accepted as Convention refugees in Canada."8 [23] The RAD agrees with the Appellant and notes that there is no analysis by the RPD of whether someone with the Appellant's profile - an elderly Coptic Christian woman with significant medical issues - would face a serious possibility of persecution upon return to Egypt. The RPD erred in rejecting entire evidence, oral or documentary, and focusing on inconsistencies not central to the claim. [24] The Appellant submits that the RPD has erred in failing to consider or give sufficient weight to evidence corroborating the Appellant's story and describing conditions in Egypt. The Appellant further submits that the RPD's credibility concerns revolved around the DR's evidence with respect to the ownership of the Appellant's home and did not deal with the issue of the well-foundedness of the Appellant's fear of persecution. The Appellant also submits that the RPD made no clear finding with respect to her credibility. [25] In its Reasons and Decision, the RPD indicated that there were areas of testimony that raised some concerns with respect to credibility.9 The RPD found that it was implausible that the DR would have flown from Canada to Cairo to sell a property, without first having made contact with his legal counsel. The RAD notes the RPD never asked the DR directly why he had travelled to Egypt without first having confirmed with the lawyer that he would be available during the DR's time in Egypt. While the RAD finds the DR's failure to confirm the lawyer's availability and even set up an appointment with him ahead of time somewhat problematic, it does not find the DR's failure to contact the lawyer before leaving for Egypt implausible, given that he was not given the opportunity by the RPD to provide an explanation. [26] The RPD has cited Orelien10 when commenting on the Appellant's evidence: "the panel cannot be satisfied that, 'the evidence is credible or trustworthy unless satisfied that is probably so, not just possible so.' "11 It would appear that the RPD does not find the Appellant's evidence to be credible or trustworthy. [27] The RPD, in its Reasons and Decision, stated that the DR had testified that their property in Egypt had been expropriated in 2011 before his mother left Cairo, but later had changed his response and said it was after she came to Canada. In reviewing the transcript of the hearing the RAD notes that the following exchange between the RPD and the DR: RPD: ...my question is, your mother arrived in Canada after your home was expropriated? DR: Before.12 (later in the hearing) RPD: Now earlier you said that your home was expropriated for a mosque prior to your mother coming to Canada. DR: No, it was after. COUNSEL: It's before. It was after? RPD: So I said, so your mother... COUNSEL: Before he came. RPD: So I said your mother arrived in Canada after your home was expropriated. And you said before. DR: No, I just probably did not pay attention to the question.13 [28] The RAD notes that the RPD's initial question was whether the Appellant (the DR's mother) had arrived in Canada after their home had been expropriated, or to put it another way: whether the home had been expropriated before the Appellant had arrived in Canada. In response to the RPD's initial question as to whether the Appellant had arrived in Canada after their home had been expropriated, the DR replied: "Before." [29] Later in the hearing the RPD says to the DR: "Now earlier you said that your home was expropriated for a mosque prior to your mother coming to Canada." In fact, the DR had indicated that the home had been expropriated after the Appellant had arrived in Canada when in response to the RPD's question: "...my question is, your mother arrived in Canada after your home was expropriated?" he replied: "Before." [30] By inverting the question later on in the hearing, the RPD has inadvertently asked a different question. It is clear from the transcript that both the DR and Counsel are uncertain as to what was actually being asked. The RPD's negative inference with respect to the DR's credibility as a result of his response to the RPD's question is therefore unwarranted. [31] The RPD notes that the letters14 provided by the Appellant from a lawyer in Cairo do not confirm any expropriation of the Appellant's property in Cairo and do not contain any attachment confirming ownership of the property. The RPD has therefore given no weight to the letters and finds "...on a balance or probabilities that the incidents surrounding the family residence did not take place as alleged."15 [32] The Appellant submits that the first letter16 from the lawyer does in fact confirm both the "expropriation" of the property by Sheikh XXXX and its ownership by the Appellant and her family when it clearly states that "XXXX XXXX XXXX XXXX XXXX XXXX together with his supporters occupied the building located at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which is owned by you and your family." The second letter17 also repeats essentially the same information. [33] The RAD agrees with the Appellant that the lawyer's letter does in fact corroborate the Appellant's allegation that her home has been taken over by XXXX XXXX. [34] Although no document was attached confirming ownership of the property by the Appellant, it is not implausible or even expected that such a document would be attached to the letter which was sent by the lawyer to the Appellant's son in May 2011. The letter, nonetheless, confirms ownership of the property when, in reference to the property, it states: "...which is owned by you and your family." [35] The RPD found that it is not credible that the DR does not have a document confirming ownership of the property. When asked at the hearing as to location of the document, the DR replied that it was in their home in Egypt. The DR indicated that he had just left the property and come to Canada. The RPD questioned why the DR would not have attended to the property, then worth between 150,000 and 170,000 CAD (based on current rates), prior to immigrating and what was his intention regarding the property. He replied that he had intended to sell the property later on when the situation in Egypt was less volatile and property values not as low. [36] The RAD finds the DR's explanation to be reasonable. According to his testimony18, he and each of his brothers had an apartment in the building and his parents lived in the upper apartment. The property's ownership was in the father's name and then afterwards, each brother had an apartment in his name. The RAD notes that the Appellant's sons had all left the country before the Appellant. She then lived alone in the building from XXXX 2010 until XXXX 2011 when she came to Canada. [37] The DR was the last son to leave when he immigrated to Canada in XXXX 2010. At that time, the Appellant was not experiencing any problems, nor did she have any apparent medical difficulties. It was therefore not unreasonable that the DR would have left any real estate documents at home with the Appellant. His intention had been to return and sell the property and there was no evidence to indicate that the Appellant would not have continued to live in her home in Egypt. The RAD therefore does not agree with the RPD's finding that it is not credible that he not have a document proving ownership of the building. [38] The RAD notes that the RPD's rejection of the lawyer's letters is based on faulty credibility findings which have led the RPD to erroneously conclude that the incidents surrounding the family residence did not take place as alleged. The RPD has erred in failing to consider or give sufficient weight to evidence corroborating the Appellant's story and describing conditions in Egypt. [39] The Appellant has, in her BOC narrative and through the testimony of the DR, stated that in XXXX 2011 she was knocked down and her gold cross taken from around her neck by two youngsters on a motorized scooter (Vespa). She also stated that on XXXX XXXX, 2011 her apartment was ransacked and items were stolen. These two incidents prompted her sons in Canada to send for her. Being in possession of a multiple-entry visa to Canada, she left Egypt and arrived in Canada on XXXX XXXX, 2011. While in Canada she learned that her apartment had been broken into again and most of the remaining items looted. Some weeks later, she heard that Sheikh XXXX XXXX had moved into her building, turned the first floor into a small mosque and took over the rest of the building as residences for his family. The RAD notes that the RPD has not directly challenged the Appellant's narrative of the difficulties she faced in Egypt. Instead, the RPD has questioned the veracity of events by drawing inferences as to the credibility of the testimony given by the DR - primarily around the ownership and disposition of the property in Egypt. The RAD finds that the RPD erroneously determined that the DR has not been credible and has indirectly impugned the credibility of the Appellant. [40] The Appellant submits that the evidence properly before the RPD was that the Appellant is a very elderly Coptic Orthodox woman with significant medical issues, without family in Egypt, who has been twice attacked in the street. The Appellant also submits that her documentary evidence as well as country condition documents in the National Documentation Package (NDP) confirm the risk to her life. [41] The RAD does not dispute that the Appellant is a very elderly Coptic Orthodox woman with significant medical issues, without family in Egypt, who has been attacked in the street in Cairo and has had her apartment occupied by members of the majority Muslim population. [42] In addition to her testimony, the Appellant has provided two news articles19 describing attacks on elderly people. The RAD notes that the attacks were criminal acts, and that the individuals who were subjects of the attacks were elderly individuals who were robbed. The RAD notes that the Appellant was also attacked by individuals seeking to rob her. It is not clear that the individuals who grabbed her gold cross targeted the Appellant because of her religion. It would appear that theft was also a motive in the attack. Nonetheless, documentary evidence indicates that Egyptian authorities have been unable or unwilling to protect Christians who are victims of violence, theft, and other crimes. As reported by Minority Rights Groups International in the United Kingdom's Country Information and Guidance Report on Christians in Egypt (14, July 2014): The active targeting of Coptic Christians and their churches in revenge attacks, for instance, not only reflects an apparent escalation in hostility towards this religious minority from some sections of the population, but also the continued inability or even indifference of the authorities to protect minority communities and provide adequate justice for victims20. [43] The same source also noted that there are some recurring patterns in Egyptian authorities' response to incidents against minorities that have contributed to a climate of impunity such as: • A consistent denial of the existence of religious discrimination, along with an unwillingness to address the issue of sectarianism in violent incidents, with officials frequently repositioning them as isolated events or the result of outside interference. • A failure to enforce rule of law before, during and after attacks, due to lack of political will or capacity, resulting in inadequate prevention, prosecution and punishment of minority-related crimes. [44] As a result of the government's failure to protect Coptic Christians, there has been ongoing acts of violence. As reported by Amnesty International in its February 2014 report: Coptic Christians faced an unprecedented level of violence after the Rabaa al-Adawiyadispersal; sectarian attacks left four dead and 200 Christian properties and 43 churches damaged. The Egyptian authorities said the attacks were "terrorism", yet failed to ensure adequate, impartial and independent investigations - including into the security forces' failure to prevent and stop the violence. Despite government promises, victims have notreceived reparation and damaged churches have yet to be rebuilt.21 [45] The RAD notes that the Appellant has not referenced any specific NDP documents. The RAD has nonetheless reviewed NDP documents22 that describe country conditions. Since the ouster of former President Morsi, the security situation in Egypt has improved as pro-Morsi supporters and members of the Muslim Brotherhood have been neutralized by the authorities and violent protests have largely been eliminated. Acts of violence against Coptic Christians have diminished, especially in large urban centres such as Cairo, since the ascendance of the current President Sisi, supported by the Egyptian Military. Nonetheless, Christians and other non-Sunni Muslims continue to face discrimination in a country where 90% of the population are Sunni Muslims. The Australian Department of Foreign Affairs and Trade, Country Report: Egypt, (DFAT 2014 Egypt report) published 28 January 2014, noted: Community prejudice (i.e. "societal discrimination") against Copts is pervasive, but severity varies depending on geographic and socio-economic factors. 23 [46] The RAD finds that the Appellant, an elderly Coptic Christian woman with health issues and without immediate family support in Egypt, will experience difficulties were she to be returned to her country. The RAD also finds that while the Appellant may not been personally targeted, she is a member of a religious minority that has been targeted as a group and continues to experience problems, in large part because of the government's inability or apparent unwillingness to protect them and to prosecute its attackers. Even if collective violence against Christians has decreased under the current regime, at the very least, on a cumulative basis, ongoing "societal discrimination" amounts to persecution. [47] Like the RPD, the RAD is sensitive to the needs and vulnerability of the Appellant, given her profile and situation. The RAD finds, however, that given the ongoing difficulties faced by Coptic Christians in Egypt and the current government's inadequate response to attacks on them, even if motivated in part by criminal intent, there is a reasonable chance that she will be harmed were she to return to Egypt. CONCLUSION [48] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the transcript of the hearing, the RAD disagrees with the RPD's finding that there is not a serious possibility of persecution should the Appellant return to Egypt. The RAD therefore concludes that the Appellant has established a well-founded fear of persecution under Section 96 of the IRPA. [49] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Appellant is a Convention refugee pursuant to Section 96 of the IRPA. (signed) "Anthony da Silva" Anthony da Silva February 2, 2016 Date 1 Exhibit P-2, Appellant's Record, p. 26. 2 Exhibit P-2, Appellant's Record, Memorandum, pp. 37-42. 3 Exhibit P-2, Appellant's Record, p. 13. 4 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 4, para. 19. 5 Ibid., p.5. 6 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 7 Exhibit RPD-1, RPD's Record, Transcript of Hearing, p.14, ll. 38-44. 8 Exhibit P-2. Appellant's Record, RPD's Reasons and Decision, p.6, para. 23. 9 Exhibit P-2, Appellant's Record, RPD Reasons and Decision, p. 5, para. 21. 10 Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.). 11 Exhibit P-2. Appellant's Record, RPD Reasons and Decision, p. 4, para. 20. 12 RPD Record, Transcript of Hearing, p.11, ll. 37-38. 13 RPD Record, Transcript of Hearing, p.13, ll. 5-21. 14 Exhibit P-2, Appellant's Record, pp.14-17. 15 Ibid., RPD Reasons and Decision, p. 5, para. 22. 16 Ibid., pp. 14,15. 17 Ibid., pp. 16,17. 18 Exhibit RPD-1, RPD's Record, Transcript of Hearing, p.9, ll. 31-41. 19 Exhibit P-2, Appellant's Record, pp. 18-24. 20 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Egypt (August 28, 2015) item 1.7, sect. 2.4.11. 21 Ibid. 22 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Egypt (August 28, 2015) items 1.4, 1.7, 2.1. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Egypt (August 28, 2015), item 1.7, section 2.3.8, p.15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :