TB4-05666

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 : TB4-05666 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Imtenan S. M. Abd El Razik Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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. [2] The Appellant submitted new documents (two articles, an Affidavit of XXXX XXXX dated XXXX XXXX, 2014 and a transcript of a video) to be considered as new evidence pursuant to s. 110(4) of the Immigration and Refugee Protection Act (the Act). The Appellant however did not seek a hearing before the RAD. [3] The Appellant requests that the appeal be allowed and that the Appellant be found to be a Convention refugee or a person in need of protection. DETERMINATION [4] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) sets aside the determination of the Refugee Protection Division (RPD) and finds that the Appellant is a Convention refugee. This appeal is allowed. Background [5] The Appellant alleged before the RPD that he is a Sunni Muslim born in the Kingdom of Saudi Arabia (KSA) to Egyptian parents. He returned to Egypt when he was about seven years old and stayed in Egypt until the age of 18 (in 2008) when he returned to the KSA. In 2011, he cancelled his idea of returning to Egypt after he found out that his maternal uncle, XXXX XXXX XXXX, had registered him as a member of the Freedom and Justice Party (FJP) without his consent and or knowledge. His paternal uncle, XXXX XXXX XXXX XXXX, a XXXX XXXX in the Egyptian army, informed that the Appellant's name was in the system with notes that he was a member of the Muslim Brotherhood (MB) living in KSA and that he was in default of military conscription since 2010. He continued to work in KSA and came to Canada on a student visa on XXXX XXXX 2013 (visa valid from XXXX XXXX XXXX until XXXX XXXX 2014) to study XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [6] He fears returning to Egypt for two reasons, due to the actions of his uncle to make the appellant a member of the FJP which was a political wing of the banned Muslim Brotherhood (MB) and that he will be required to comply with compulsory military conscription. [7] His claim was heard on May 5, 2014 and the RPD rendered a written decision on May 30, 2014. The RPD found that the Appellant was not credible and "he has not established that he has a serious possibility of being persecuted for a Convention reason or meeting harm for a s. 97 risk." The RPD also found that the Appellant "is a pleasant, articulate young man who undoubtedly would contribute well to Canadian society." [8] Appellant's Issues (in my words) are as follows: * Did the RPD err by failing "to engage with the objective evidence of risk under s.97?; * Did the RPD err and fail to properly consider the conscientious objection argument?; * Did the RPD err by not properly considering FJP membership in its proper context?, and many erroneous findings made based on plausibility. I will focus on whether the Appellant established a nexus to the Convention, and would he be considered a deserter in Egypt and whether the RPD erred by failing to consider the risks faced by the appellant pursuant to section 97(1). Role of the RAD [9] The Appellant was given an opportunity to make submissions on recent Federal Court decisions regarding the RAD. The Appellant submitted "that Huruglica1 should be preferred." I am going to follow the direction in Huruglica, wherein the court stated the following: 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. [10] 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 a "palpable and overriding error." Merits of the Appeal [11] Having considered the totality of the evidence, I am going to focus first on the Appellant's first issue. The Appellant submits that: The RPD accepted the Appellant's profile as a military draft defaulter. It similarly did not dispute the evidence before it that showed that the Appellant would be detained on arrival in Egypt, held in detention pending investigation, "put before a court martial," and "sentenced to prison for defaulting" (before serving a possibly extended military service term"). Furthermore, there was ample evidence establishing that Egypt's military trials are extremely unfair and that torture in Egyptian prisons is "endemic." [12] The Federal Court has repeatedly found that it was simply not open to the Board to omit consideration as to whether the Appellant was a person in need of protection under s. 97 of the IRPA. [13] Jurisprudence regarding s. 97 Analysis: In this case, the RPD did not conduct a separate section 97 analysis, and the RPD also did not consider country conditions in Egypt. The RPD found that the Appellant was an Egyptian male 23 years of age, and that he is a military draft defaulter. [14] Documentary evidence shows that military service is required for all male Egyptians when they reach the age of 18 until the age of 30. [15] The RPD recognized that the Appellant could return to Egypt when he reaches 30 years of age and stated in its reasons at paragraph 34: "The panel notes that the claimant's own evidence was that Uncle XXXX said he could return to Egypt after the age of 30 which is the age limit for the draft - the implication that returning then would be safe and that way he could avoid compulsory military service." [16] The fact is that the Appellant is older than 18 and did not get drafted, thus he would be considered a draft dodger should he return to Egypt. [17] The Appellant cited the decision in Smoudi,2 where the court stated: The Board clearly found that Mr. XXXX would be subject to prosecution for having evaded military service. However, it also found that Mr. XXXX had not shown that he would receive a disproportionately severe punishment for that offence. In fact, Mr. XXXX testified that he would be jailed for at least five years and could receive the death penalty. Documentary evidence indicated that conditions in Syrian military prisons were deplorable. The Board referred to none of that evidence. [18] The RPD's national documentation package of Egypt does not have any articles under the Military Service heading; however, the Appellant provided significant volumes of documents regarding this issue. It appears that the RPD ignored all of the significant documentary evidence about military draft evasion, jail conditions in the army, and high level of corruption in Egyptian military tribunals. The RPD used selective sections of the documentary evidence in its analysis in its paragraph 34, where it states: "The CSF falls under the jurisdiction of the Ministry of the Interior and recruits are men who are called up for Egypt's compulsory military service, "many of whom from the countryside, are poor and cannot read or write." And that the Appellant comes "from a well-educated, well off family all of whom remain in the KSA. The claimant has a high school education as well as some post-secondary education." It would appear that the RPD is suggesting that because he has some education, he would not be considered as a draft dodger. In my opinion, this would be based on sheer conjecture. [19] The Appellant also submitted that he is at higher risk than an ordinary defaulter because of his alleged membership in the FJP. I note that the RPD found the Appellant not credible regarding his membership in the FJP party. Regardless, the RPD was still required to consider the risk to the Appellant because of military draft desertion. [20] Extensive jurisprudence on s. 97 states the following on the issue of need to analyze the risk on a case by case basis. [21] The Federal Court in Bouaouni3 stated the following: A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. While the Board must assess the applicant's claim objectively, the analysis must still be individualized. I am satisfied that this interpretation is not only consistent with the United Nations CAT decisions considered above, but is also supported by the wording of paragraph 97(1)(a) of the Act, which refers to persons, "..whose removal would subject them personally....".There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founder fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant's removal would subject him personally to the dangers and risks stipulated in paragraphs 97 (1) (a) and (b) of the Act. Arguably, the Board may also be required to apply a different standard of proof, which is an issue that I will leave for another day, since it was not argued on this application. Whether a Board properly considered both claims is a matter to be determined in the circumstances of each individual case bearing in mind the different elements required to establish each claim. (Emphasis added). [22] In Brovina,4 the circumstances were similar to this appeal and the claimant was found to be not credible; the Federal Court cited several pertinent cases, including Mr. Justice Mosley, at paragraph 27, in Kilic v. Canada (Minister of Citizenship and Immigration) 2004 FC 84 (CanLII), 2004 FC 84 stated: In my opinion, the Board in this case did not address the country documentation and other evidence related to prison conditions in Turkey and failed to consider whether the applicant could be a "person in need of protection" if returned to that country, in light of the possibility that he may face a "serious prison sentence" for evading Turkish military service. Despite the Board's negative credibility findings, a separate analysis, along the lines described in Bouaouni, supra, and having regard to the legislative wording of section 97, may have produced a finding that Mr. Kilic was a person in need of protection. Therefore, the result of the Board's error is unknown, and, accordingly, this application should be sent back for redetermination on this ground. [23] It is evident that in Kilic, supra, there was evidence that was not addressed under the section 96 analysis that should have received section 97 consideration. [24] In Yorulmaz v. Canada (Minister of Citizenship and Immigration) 2004 FC 128 (CanLII), 2004 FC 128, Mr. Justice von Finckenstein found that the Board's negative credibility finding was substantiated by the facts and that the failure to perform a section 97 analysis was not relevant to the result because of a lack of evidence. [16] Mr. Justice Gibson, in Kulendrarajah v. Canada (Minister of Citizenship and Immigration) 2004 FC 79 (CanLII), 2004 FC 79 determined that the board did not err in arriving at its negative credibility finding. Since the sole bases for the claim were Convention grounds (ethnicity and membership in a particular social group), the board's credibility and risk analyses were sufficient to support a denial of refugee status. Justice Gibson further determined that the claimant was not a person in need of protection because no ground to support a need of protection other than a Convention ground had been advanced. While a more extensive explanation for the board's determination regarding section 97 might have been desirable, its absence did not constitute reviewable error. [17] These authorities, in my view, do not demand that a section 97 analysis be performed in every case. Rather, it will be required in some cases. It is a question that must be reviewed on a case by case basis. If there is evidence before the board to support a section 97 analysis, the analysis must be conducted. [18] Thus, while a separate section 97 analysis is desirable, the failure to conduct such an analysis will not be fatal in circumstances where there is no evidence that would require it. Here, there were no other grounds to support a finding of a person in need of protection and the risk analysis was performed for Mrs. Brovina in the context of refugee protection. Moreover, the board did conduct a brief analysis related to a section 97 risk when it found that there was "no reason to believe" that Mrs. Brovina would face any risk in returning to Albania. There was no objective evidence before the board that might have led to any other conclusion. [25] In this case, even if the Appellant does not have a nexus; i.e., is not a genuine conscientious objector, the RPD was still required to assess his risk to life under s. 97 for what he will face as a deserter. Documentary evidence provided by the Appellant and by the Board show poor prison conditions, torture, lengthy detention, etc., and there is no recourse to a fair and impartial judiciary under the circumstances of this case. In this case the RPD erred by failing to assess the prison conditions in Egypt, the evidence that was before the RPD. [26] The allegation is that he would be at risk for deserting. The RPD did not question whether he was a deserter or not. There is sufficient evidence on the record to determine that he will be considered to be a deserter; in fact, the RPD found it so and suggested that he could go back when he is 30 years of age. As a deserter, he wou ld be tried by a Military court5 where the conviction rate is 93 per cent; the process is often unfair.6 The "harsh conditions in prisons7" jail, and according to the same report, "On August 18, police allegedly killed 37 MB detainees being transferred to Abu Zaabal Prison near Cairo. According to the Ministry of Interior, the prisoners died from "suffocation and crowding" when security forces used tear gas after the prisoners reportedly took a police officer hostage" and "police and prison guards sometimes resorted to torture". [27] The RAD, having made a determination, finds that the documents submitted for consideration pursuant to s. 110(4) of the Act are not needed and thus are not analyzed. Similarly, the RAD will not consider other issues raised by the Appellant. DISPOSITION [28] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the RPD's determination and finds that the Appellant is a Convention refugee. [29] This appeal is therefore allowed. (signed) "Atam Uppal" Atam Uppal October 21, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799 2 Smoudi, Ahmad Al Badawi v. M.C.I. (F.C., IMM-9192-04), O'Reilly, August 22, 2005, 2005 FC 1139 3 Bouaouni, Riadh Ben Solta v. M.C.I. (F.C., no. IMM-5570-02), Blanchard, October 20, 2003, 2003 FC 1211(CanLII) 4 Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29 2004, 2004 FC 635 (CanLII) 5 RPD Record, page 177 6 Ibid. 7 RPD record U.S. Dept. of State Report, Egypt, item 2.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05666