Rihan v. Canada (Minister of Citizenship and Immigration), (2010) 362 F.T.R. 148 (FC)

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: Wednesday July 29, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 362 F.T.R. 148 (FC);2010 FC 123

Rihan v. Can. (M.C.I.) (2010), 362 F.T.R. 148 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. FE.010

Ahmed Abdel Hafiz Ahmed Rihan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4743-08; 2010 FC 123)

Indexed As: Rihan v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mandamin, J.

February 5, 2010.

Summary:

The applicant, an Egyptian citizen, fled Egypt for Canada in 2006 because he feared persecution for his liberal beliefs. A member of the Immigration and Refugee Board, Refugee Protection Division (RPD) denied the applicant was a Convention Refugee or a person in need of protection. The RPD excluded the applicant from refugee status pursuant to Article 1F(b) of the Convention Relating to the Status of Refugees, because of an Interpol notice issued by Egypt seeking his arrest and extradition to serve a sentence for fraud. The applicant claimed the charges against him were fabricated. He sought an order setting aside the decision and remitting the matter to a differently constituted panel for determination.

The Federal Court granted the application. The RPD erred in assessing the applicant's evidence, misconstruing the evidence of his Egyptian lawyer, and failing to consider evidence by both the applicant's wife and his Egyptian lawyer. The RPD decision was unreasonable.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - Section 98 of the Immigration and Refugee Protection Act gave effect to Article 1F(b) of the Convention Relating to the Status of Refugees, excluding from refugee status claimants who had committed serious crimes - The Federal Court reviewed the spectrum of jurisprudence concerning Article 1F(b) - "What emerges is Article 1F(b) leaves signatories to the convention a fair degree of latitude to exclude both criminal and possibly criminal applicants. The Article is not restricted to extraditable crimes, nor must there be proof of a conviction or even an allegation of a qualifying crime made by authorities in other countries" - See paragraphs 46 to 56.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The applicant fled Egypt for Canada because he feared persecution for his liberal beliefs - A member of the Immigration and Refugee Board, Refugee Protection Division (RPD) excluded the applicant on the basis of an Interpol Red Notice issued by Egypt seeking his arrest and extradition to serve a six year sentence for fraud (some $51,000) - The applicant claimed the charges against him were fabricated - The applicant's wife and lawyer testified that no crime had been committed since the investor/alleged victim had received a villa in full value for his investment - The wife also testified that the charges stemmed from pressure by the Muslim Brotherhood - The applicant's Egyptian lawyer testified the applicant was unaware of the lawsuit - The alleged victim sent a waiver to Interpol - The Federal Court granted the application for judicial review, quashed the decision and remitted the matter for redetermination by a differently constituted panel - Having regard to the evidence, the RPD erred by finding the Interpol Notice alone sufficed as a "serious reason for considering" a serious crime was committed - The evidence from the applicant's wife and his Egyptian lawyer cast doubt on the information contained in the Notice - The jurisprudence called on the RPD to have "gone further" in examining whether the applicant's allegation of fabricated charges was credible - See paragraphs 57 to 92.

Words and Phrases

Serious reasons for considering - The Federal Court assessed how members of the Immigration and Refugee Board of Canada should interpret the meaning of the phrase "serious reasons for considering" and when that requisite standard of proof came into legal play - See paragraphs 74 to 78.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].

Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 324 F.T.R. 62; 2008 FC 238, affd. (2008), 384 N.R. 293; 2008 FCA 404, refd to. [para. 20].

Gurajena v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 505; 2008 FC 724, refd to. [para. 25].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 47].

Chan v. Canada (Minister of Citizenship and Immigration) (2000), 260 N.R. 376 (F.C.A.), refd to. [para. 48].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 761; 307 N.R. 201; 2003 FCA 178, refd to. [para. 49].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 57].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 58].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 74].

Jolly v. Minister of Manpower and Immigration, [1975] F.C. 216; 7 N.R. 271 (F.C.A.), refd to. [para. 76].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 78].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 98 [para. 17].

United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 2545, art. 1F(b) [paras. 2, 18].

Authors and Works Noticed:

United Nations High Commissioner for Refugees, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, para. 23 [para. 26].

Counsel:

Micheal Crane, for the applicant;

Ned Djordjevic, for the respondent.

Solicitors of Record:

Micheal Crane, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on July 29, 2009, by Mandamin, J., of the Federal Court, who delivered the following reasons for judgment and judgment, at Ottawa, Ontario, on February 5, 2010.