TC0-05879

RAD File / Dossier de la SAR : TC0-05879 TC0-05880 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 16, 2020 Date de la décision Panel Jillan Sadek Tribunal Counsel for the persons who are the subject of the appeal Diane B. Coulthard Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants (XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX) are citizens of Egypt. They are siblings, aged XXXXandXXXX XXXX, respectively. Their designated representative is their mother. [2] On January 30, 2020 the Refugee Protection Division (RPD) determined that the Appellants' mother met the definition of Convention refugee. The RPD also determined that the Appellants were neither persons in need of protection nor Convention refugees. [3] The Appellants argue that the RPD erred procedurally during the hearing as Counsel was not given an opportunity to question the Appellants, nor was Counsel given the opportunity to make submissions prior to the RPD delivering its oral reasons. [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 DECISION [5] I dismiss the appeal. While the Appellants are correct that the RPD erred procedurally, this error has been remedied through the present appeal and I find that the Appellants have not established that they are either Convention refugees nor persons in need of protection. ANALYSIS [6] I have carefully reviewed the entire record and have listened to the RPD hearing. I find the determinative issue is the lack of evidence that the Appellants would be at risk in Egypt. The Appellants' entitlement to procedural fairness was breached [7] I agree with the Appellants. After the RPD had finished questioning their mother, the RPD recessed proceedings for a break. After returning from the break, the RPD immediately announced that it was accepting the claim and commenced reading out its reasons. Counsel had no idea that the two minors were not included in the positive decision until the end of the RPD reasons. [8] This was an error. The RPD ought to have given Counsel the opportunity to ask questions of the designated representative of the Appellants and ought to have given Counsel the opportunity to present submissions with regards to their claim. [9] However, this error is not determinative of the appeal as the unfairness at the RPD level is remedied by the Appellants' ability to file submission and evidence on their appeal to the Refugee Appeal Division (RAD). [10] With regards to the RAD's remedial powers, I note that the Federal Court of Appeal has stated: "The legislative purpose behind the RAD's implementation was discussed in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 F.C.R. 157 (Huruglica). In that case, this Court referred to the 2001 comments of the Minister responsible for Bill C-11, that "[t]he whole purpose [of the RAD] is to ensure that the correct decision is made" (at para. 87), as well as to those of Peter Showler, then Chair of the IRB, who stated that the RAD would "efficiently remedy errors made by the RPD" and act as a "safety net" (at para. 88). After reviewing the legislative history, this Court concluded that "[t]he RAD was essentially viewed as a safety net that would catch all mistakes made by the RPD, be it on the law or the facts" (at para. 98). " 2 [11] In light of the RAD's jurisdiction to remedy errors, I have examined the evidence presented by the Appellants to establish their claim. Basis of Claim for protection [12] The Appellants' mother's claim was based on her involvement with the Nubian Union. With regards to her children's claim, in their mother's narrative, it is asserted: "I fear my children will be denied education and potentially even detained by the Egyptian authorities if they cannot apprehend me."3 [13] At the RPD hearing, when the Appellants' mother was asked what she feared for her children, the following exchange took place: MEMBER: So is someone persecuting your children, the two that are here? Is someone persecuting the two children you have here? Is someone - yes. In Egypt. In Egypt. CLAIMANT: No. MEMBER: So why are they applying for refugee status? CLAIMANT: Because, first of all, no one is going to take care of them, except me. And I was quite sure that nobody was going to take care of him, especially when it comes to his education, if I left him in Egypt. And the relatives of my husband, they believe that he is obsessed and he is not autistic kid. MEMBER: Okay. COUNSEL: Obsessed? (...) COUNSEL: Possessed.4 [14] In their Appeal Memorandum, the same arguments are repeated, it is asserted: "They fear persecution in Egypt because of their mother's involvement with the Nubian community and the fact she has been targeted by Egyptian authorities for that involvement. The Appellants fear they will be denied education and will be targeted and detained by Egyptian authorities since the Egyptian authorities are unable to apprehend their mother."5 No new evidence was submitted with their appeal to support these allegations. [15] It should be recalled that the Appellant's allegation was that she was living in Kuwait with her husband and, while on holiday in 2018 in Aswan, Egypt, attended a meeting of the Nubian Union which was involved in reclaiming certain ancestral lands. The meeting was allegedly interrupted by police who attempted to arrest the attendees. The Appellants' mother alleges that after being questioned and charged by police, she escaped the police by running from the area. There was no evidence that the Appellants' mother was a high-profile person in the Nubian Union. [16] In terms of the argument that Egyptian authorities may detain the Appellants in order to apprehend their mother or instead of their mother, the evidence before the RPD was that the Appellants' mother's relatives - her "mother, father and other relatives" live on Nubian land in Egypt6 and yet there is no evidence that the Egyptian authorities have harassed them or denied them benefits -- out of frustration for having been unable to arrest the Appellants' mother herself. I therefore find this assertion to be highly speculative and unsupported. [17] The articles submitted by the Appellants to the RPD, indicate the following regarding the general situation of the Nubian people in Egypt: a. Nubians have long been demanding their constitutionally enshrined right to return to their homeland south of the Aswan High Dam, from which they were displaced when the dam was built.7 b. There is a history of systematic marginalisation and suppression of Nubian demands.8 c. Prominent Nubian activists have been arrested and detained9, one protester died while in detention.10 d. Nubians have their own language, though some no longer speak it.11 Schools and Universities do not offer instruction in the Nubian language in Egypt.12 e. Well over 300 000 Nubians live across Egypt but often face economic discrimination.13 f. Nubians often encounter racism as they have darker skin than other Egyptians.14 [18] The above information is generally consistent with the objective country condition documents in the National Documentation Package on Egypt. By way of background, a report from the Equal Rights Trust indicates: There are reportedly between three and four million Nubians living in Egypt, who originate from the region known as "Nubia" which once occupied territory in modern-day southern Egypt and northern Sudan. When the boundary between Egypt and Sudan was fixed in 1899, a significant population of Nubians found themselves under direct Egyptian rule in the governorate of Aswan. Today, the governorate of Aswan has a significant population of non-Nubian inhabitants, meaning that "Nubians have found themselves a minority within their native province". The Nubian people were subject to a series of forced displacements during the 20th century (discussed further below) in which thousands of Nubians were relocated to purpose-built resettlement communities north of Aswan. This had a significant economic effect on the Nubian people, as well as threatening the continuation of their unique culture and customs which developed through living along the Nile River. Nubians also reportedly face significant societal stigma and discrimination, with the Egyptian media portraying Nubians as "servants, drivers, or gatekeepers or even slaves with very narrow minds". 15 [19] The same report indicates that the degree of discrimination faced by Nubians is often mitigated by socio-economic status. In the Appellants' mother's case, I note that she is from Cairo and obtained a XXXX degree from XXXX XXXX University as well as a XXXX XXXX XXXX degree from a XXXX University in XXXX. I also note that though she stated in her narrative that her parents live on Nubian land in Egypt16, she also testified that her father used to work in Saudi Arabia but bought an apartment in Cairo so the family could vacation there.17 I also note that the Appellants' mother speaks Arabic - the most commonly spoken language in Egypt - as well as English, having worked as an XXXX XXXX in Kuwait, but asked for an Arabic interpreter for the purpose of her refugee claim.18 Finally, I also note that the Appellants' father, also a Nubian Egyptian, lives in Kuwait where he is working for a XXXX company. It therefore appears that this family, though ethnically Nubian, is not economically disadvantaged and appears to have an above average socio-economic status in Egypt. I therefore find that the Appellants are unlikely to face persecution on the basis of their ethnicity alone, should they return to Egypt. [20] In terms of the Appellant's mother's argument that "no one will take care of them" in Egypt and that her husband's family considers her autistic child "possessed". I note that the Appellants' have two other siblings residing in Egypt with their grandmother (the mother of their mother). (p.11 transcript) This is because their father was unable to renew the children's residency visas for Kuwait. Thus, to say nothing of the fact that the allegation regarding the husband's family's belief in possession is unsupported, there would appear to be no need for the Appellants to interact with their father's family in Egypt in any event. I also note that there appears to be no reason why their father could not return to Egypt to take care of all the children together there, in the country of which they are all citizens. [21] Finally, the Federal Court continues to confirm that family unity is not a concept that exists in Canadian refugee law.19 The Federal Court has stipulated that "While Canadian immigration laws may strive to facilitate family unity in certain circumstances such as those contemplated by section 25 of the IRPA, Canadian refugee law does not recognize any fundamental right for refugee claimants to live together (Chavez Carrillo v Canada (Citizenship and Immigration), 2012 FC 1228 (CanLII) at paras 15, 17; Jawad v Canada (Citizenship and Immigration), 2012 FC 1035 (CanLII) at para 10; Canada (Minister of Citizenship and Immigration) v Khan, 2005 FC 398 (CanLII) at para 11). Moreover, the concept of family unity does not relieve a refugee claimant of the onus of demonstrating that he or she falls within the definition of "Convention refugee" (Garcia Garcia v Canada (Citizenship and Immigration), 2010 FC 847 (CanLII) at para 15)."20 [22] I note that there are other facilitative mechanisms in the Immigration Refugee Protection Act (IRPA) which the Appellants' mother may take advantage of and through which they may acquire permanent residence, given her status in Canada, but that the refugee protection system is not designed for this purpose. [23] I therefore find that the Appellants have not raised any arguments or presented any evidence which would lead me to conclude that the RPD erred in rejecting their claims. CONCLUSION [24] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugee nor persons in need of protection. (signed) Jillan Sadek Jillan Sadek December 16, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 In Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at paragraphs 41-47 3 RPD-1, Supplementary narrative, RPD record, p.68 4 RAD-1, Transcript of the hearing before the RPD, January 30, 2020, p.28 5 P-2, Appellants' Memoranmdum, paragraph 8, Appellants' record, p. 11 6 RPD-1, Narrative, RPD record, p. 58 7 RPD-1, Article submitted by the Appellants, RPD record, p.245 8 RPD-1, Article submitted by the Appellants, RPD record, p.245 9 RPD-1, Article submitted by the Appellants, RPD record, p.248 10 RPD-1, Article submitted by the Appellants, RPD record, p.252 11 RPD-1, Article submitted by the Appellants, RPD record, p.249 12 RPD-1, Article submitted by the Appellants, RPD record, p.257 13 RPD-1, Article submitted by the Appellants, RPD record, p.261 14 RPD-1, Article submitted by the Appellants, RPD record, p.250 15 RPD-1, RPD record, Exhibit 3, Archive - National Documentation Package, Egypt, 30 September 2019, tab 2.9: A Past Still Present; Addressing Discrimination and Inequality in Egypt. Equal Rights Trust. December 2018. 16 RPD-1, Narrative, RPD record, p. 58 17 RAD-1, Transcript of the hearing before the RPD, January 30, 2020, p.13 18 RPD-1, CBSA interview, RPD record, p.95 19 Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398 (CanLII), para. 11. 20 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561 (CanLII), para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05879 TC0-05880 RAD.25.02 (January, 2020) Disponible en français 2 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