Date: 20061016
Docket: IMM-4293-05
Citation: 2006 FC 1226
Halifax, Nova Scotia, October 16, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
YOUSSEF
DIB SAMHAT
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated June 28, 2005, which determined that the applicant is
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks an order of certiorari quashing the Board’s decision.
Background
[3]
The
applicant, a citizen of Lebanon, was born in 1946 in
Ainatah, a village in south Lebanon. While still in his
teens, he went to Kuwait, where he spent most of his life working. He
worked as an electrical technician.
[4]
In
1972, the applicant married a Lebanese national who was also living in Kuwait. They had
six children. In 1990, Iraq invaded Kuwait and the family decided
to return to Lebanon by car. At
the Iraq-Kuwait border, the applicant got into an altercation with an unknown
man who was trying to jump the queue. The man told the applicant that he would
pay the price of the dispute if he got to Lebanon. The
applicant believed that the man later found out who he was and caused problems
for him with the Syrian authorities.
[5]
The
applicant and his family continued toward Lebanon and were
detained at the Syrian border. The applicant was held in a small cell where he
was questioned about his involvement with Iraqi intelligence, beaten and
tortured for over 20 days. He told them he had nothing to do with Iraq. After his
release in November 1990, he went to his sister’s house in Beirut. He
subsequently went to join his wife and children in Ainatah in south Lebanon, which was
under Israeli occupancy. South Lebanon was a security zone controlled by
Israeli forces and the South Lebanon Army (SLA). Persons living in the security
zone were not permitted to leave without a pass.
[6]
In
October 1990, the applicant’s oldest son, Khalil, was conscripted into the SLA. Khalil did
not want to be in the army so he arranged to get a student visa to the United
States.
In April 1991, he deserted the army and left Lebanon. He
travelled to Canada via Israel and the United States. He claimed
refugee protection in Canada and was granted refugee status on June 19,
1991. He is presently a Canadian citizen.
[7]
After
Khalil left Lebanon, the applicant was detained for two and a half months by
the SLA and
questioned about the whereabouts of his son Khalil. The applicant was harassed
by the SLA and was not permitted to leave the security zone. The applicant also
learned from his sister in Beirut that the Syrian authorities had been
asking about him. He did not know why they wanted him.
[8]
The
applicant was forced to work for the SLA. He did guard duty and
delivered messages. He was paid for his work.
[9]
In
1993, the applicant’s second son Nabil was conscripted into the army at the age
of 15. He did not have much education and thus, unlike his older brother
Khalil, was not able to get a student visa to go to the United
States.
Nabil served in the army until he deserted in 1997.
[10]
In
1995, the applicant’s daughter Hanan left Lebanon with her
husband. They went to Canada and were successful in claiming refugee
status. They are now Canadian citizens.
[11]
In
1997, the applicant went to Kuwait, where he obtained a work permit and
remained for one year.
[12]
In
October 1998, the applicant came to Canada on a visitor visa to
attend the wedding of his son Khalil. He stayed in Canada for two months, and
then went to the United States as he did not want to cause any trouble
for outstaying his visitor visa in Canada. Although he remained
in the United
States
until 2003, he did not seek asylum there.
[13]
In
April 1999, the applicants’ wife Amal, their two daughters Khadigah and Fatima
and their youngest son Mohamed, came to Canada. In September
1999, their son Nabil also managed to come to Canada. The plan
was that they would apply for refugee status, and if they were successful, they
could sponsor the applicant to come to Canada.
Unfortunately, their refugee claims were refused on April 10, 2001.
[14]
Nabil
was married to a Canadian at the time his refugee claim was refused. He was
told by immigration that if he returned to Lebanon, his wife could sponsor him
to come to Canada. He agreed
to leave Canada. Upon
arriving in Beirut, he was
arrested and sentenced to one year of imprisonment for his former membership in
the SLA. He was supposed to be released in May 2004, but to date, no family
member has heard from him or knows where he is. Nabil and his wife have a
daughter who was born after he left Canada.
[15]
The
applicant came to Canada in July 2003 and made a refugee claim. He fears
being imprisoned and tortured by the Syrian intelligence or the Hezbollah for
his involvement with the SLA.
[16]
On
June 28, 2005, the Board rejected the applicant’s claim. This is the judicial
review of that decision.
Reasons
for the Board’s Decision
[17]
The
Board found that the applicant’s failure to make a claim for refugee protection
in Canada or the United States at the first opportunity was inconsistent
with the behaviour of a person with a fear of persecution in his home country.
The applicant explained that he did not claim refugee protection during his
five-year stay in the United States because he planned to
return to Kuwait and he was waiting for his wife to complete her refugee claim
in Canada and include
him in it. The Board found this explanation was not reasonable and that the
applicant seemed only interested in finding work to earn a living, hence, his
efforts to return to Kuwait.
[18]
The
Board found that the incidents of the SLA detaining and
questioning the applicant were harassment and not persecution.
[19]
With
respect to the applicant’s allegation that he would be persecuted by the
Hezbollah and the Syrians for his past involvement with the SLA, the Board
stated at pages 6 to 7 of the tribunal record:
Nabil, the claimant’s son, returned to Lebanon and was prosecuted for his
membership in the SLA and sentenced to one year in jail. He was released on
completion of his sentence. While the claimant stated at the hearing that his
son was a regular member of the SLA while he was not, I find that, on a balance
of probabilities, he would receive similar treatment as his son for his guard
duty with the militia if he were to return to Lebanon. He would more likely not even be
prosecuted if indeed his participation in SLA were as minor as he stated. Documentary
evidence indicates that Hezbollah has been lenient to most former members of
SLA and that while some were given amnesty from prosecution, many received
light sentences of less than two years in jail. This document indicates that
only very senior members of SLA received more severe
sentences. I find that the claimant’s profile as an alternate guard, according
to his own testimony, is of a very low or minor level of collaboration with SLA
or with the Israelis. Even if the claimant were to be prosecuted for his
involvement as an alternate guard with the SLA I find that this would be prosecution
under a law of general application and not persecution for a Convention ground.
He did not indicate that his son was mistreated while serving his time in
prison. I find, on a balance of probabilities that, the claimant would not be
treated any differently than his son had been if he were to be prosecuted and
sentenced to any jail term.
Regarding the claimant’s fear of the
Syrians I find, according to his profile above, that there is no more than a
mere possibility that any remnants of Syrian intelligence presence in Lebanon would be interested in him.
The claimant’s counsel submitted post hearing evidence of Syrian intelligence
targeting and killing some Lebanese after the departure of the Syrians. I find
that Samir Qaseer, the outspoken anti-Syrian journalist and other Lebanese
whose safety are being called into question by the United States and other members of the international
community are of a much higher profile than the claimant. There is no credible
and trustworthy evidence before me to indicate that the claimant would be in
danger from the Syrians if he were to return to Lebanon.
[20]
The
Board concluded that there is no serious possibility that the applicant would
be persecuted if he were to return to Lebanon.
Issues
[21]
The
applicant’s memorandum raised the following issues:
- Did
the Board err in failing to consider whether prosecution for violating a
law of general application amounted to persecution?
- Did
the Board engage in incoherent reasoning?
- Did
the Board err in failing to consider whether the harassment suffered by
the applicant amounted to persecution?
- Did
the Board err in finding a lack of subjective fear based on a delay in
making a claim in Canada and a failure to make a claim in the United
States?
- Did
the Board err in failing to consider the disappearance of Nabil?
Applicant’s
Submissions
[22]
The
applicant submitted that the evidence shows that Lebanon is
systematically prosecuting former SLA members for collaborating with Israel. It was
submitted that the Board failed to engage in the analysis prescribed by the
Federal Court of Appeal in Zolfagharkhani v. Canada (Minister of Employment
and Immigration), [1993] 3 F.C. 540, which held that prosecution for
violation of a law of general application may be persecution if the prosecution
is not neutral vis-à-vis the five grounds of Convention refugee status.
The applicant submitted that prosecution for collaboration with Israel is not
neutral in relation to the Convention grounds, as it amounts to persecution by
reason of perceived political opinion.
[23]
The
applicant submitted that the Board engaged in incoherent reasoning when it found
on a balance of probabilities that the applicant would receive similar
treatment as his son, and then went on to state that the applicant would more
likely not even be prosecuted. It was submitted that this reasoning shows that
the Board did not understand the concept of a balance of probabilities.
[24]
The
applicant submitted that the Board erred in law by failing to consider whether
the harassment suffered by the applicant cumulatively amounted to persecution
(see Retnem v. Canada (Minister of Employment
and Immigration) (1991), 132 N.R. 53 (F.C.A.)). It was submitted that the
Board accepted that the applicant was detained and interrogated at the
Syria-Lebanon border in 1990; detained for two and a half months by the SLA
after his son Khalil deserted the army; harassed by the SLA; and likely to be
imprisoned, on returning to Lebanon, for his guard duty with the SLA. The
applicant submitted that the test for persecution does not require that all
past acts emanate from the same agent of persecution, although this point has
not been expressly decided by this Court. For this point, the applicant relied
on passages from the Office of the United Nations High Commissioner for
Refugees Handbook on Procedures and Criteria for Determining Refugee Status.
[25]
The
applicant submitted that the Board was insensitive to the applicant’s claim
when it found a lack of subjective fear based on a failure to claim in Canada
in 1998 or in the United States before 2003. It was submitted that the
applicant’s claim is based to a significant extent on the arrest and
imprisonment of his son Nabil upon returning to Lebanon, and that
the applicant made his claim less than two months after Nabil was sentenced.
[26]
The
applicant submitted that an involuntary or forced disappearance of a person while
he is in the custody of the state amounts to persecution by the state. The
applicant submitted that no family member has heard from Nabil since the time
that he was supposed to be released. It was submitted that the Board member
failed to refer to the disappearance of Nabil and therefore made a conclusion
without regard to the evidence before it.
Respondent’s
Submissions
[27]
The
respondent submitted that the identification of persecution behind incidents of
discrimination or harassment is a question of mixed fact and law, subject to a
reasonableness simpliciter standard of review (see Wickramasinghe v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 470 at
paragraph 10 and also Sagharichi v. Canada (Minister of
Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.)). The
respondent submitted that for acts of harassment to amount to persecution, they
must be sufficiently serious and occur over such a long period of time that it
can be said that the claimant’s physical or moral integrity is threatened (see N.K.
v. Canada (Solicitor General) (1995), 107 F.T.R. 25 at paragraph
21). It was submitted that it was reasonable in the case at hand for the Board
to conclude that the treatment of the applicant was non-persecutory.
[28]
The
respondent submitted that the prosecution facing the applicant if he returned
to Lebanon is a law of
general application. It was submitted that the decision of Zolfagharkhani
relied upon by the applicant stipulated at paragraph 21 that “an ordinary law
of general application, even in non-democratic societies, should be given a
presumption of validity and neutrality, and the onus should be on the claimant,
as is generally the case in refugee cases, to show that the law was inherently,
or for some other reason, persecutory”. It was submitted that the applicant did
not present evidence to rebut the presumption of neutrality. In the absence of
such evidence, it was submitted that the Board is not required to perform, on
its own initiative, an analysis of a law of general application. Further, it
was submitted that the transcript reveals that the applicant did not fear
prosecution by the government for his involvement with the SLA, and this
was confirmed by the applicant’s counsel in closing submissions before the
Board.
[29]
The
respondent submitted that the Board did not err in considering the applicant’s
first detention (at the Syrian border) to be an isolated incident that did not
have to be considered cumulatively with his later experiences in his hometown
of Ainatah,
Lebanon.
The respondent submitted that any risk that might have arisen from the incident
is removed due to the departure of the Syrians from Lebanon.
[30]
The
respondent submitted that it was appropriate and reasonable for the Board to
note that the delay in filing the applicant’s claim cast doubt on his
subjective fear, as his behaviour was not consistent with his fear (see Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157 N.R.
225 (F.C.A.)). The respondent submitted that while the applicant argues that detention
of his son was the basis of his claim and that he made his claim only two
months after this incident, the applicant alleges significant facts that
spanned decades, including alleged treatment that happened well before the
son’s detention. It was submitted that the applicant’s claim is simply not
reducible to the moment his son was detained. The applicant viewed his
situation as being entirely different from that of his son. The applicant
attributed his risk of persecution to events that occurred prior to his leaving
Lebanon. The
respondent also noted that all of the applicant’s immediate relatives applied
for refugee status before the son’s detention.
[31]
The
respondent submitted that the applicant is engaging in semantic autopsy in
arguing that the Board engaged in incoherent reasoning when it stated that the
applicant would “more likely not” be persecuted (see Ndombele v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1211 at paragraph 24).
[32]
The
respondent submitted that the Board had regard to all the evidence including
the detention of the applicant’s son, Nabil. There was evidence that the
applicant did not know where Nabil was upon his release from jail, but there
was absolutely no suggestion that Nabil had disappeared, that the family was
looking for him or that anything untoward had happened to him. There was no
evidence suggesting that Nabil’s whereabouts were central to the applicant’s
claim, nor was there evidence linking this incident with persecution by the
state. Therefore, in the absence of such a link, the respondent submitted that
the Board did not commit a reviewable error by not commenting on the
whereabouts of Nabil. Failure to mention every piece of evidence is not grounds
for judicial review and the Board is assumed to have weighed and considered all
the evidence unless the contrary is shown (see Akram v. Canada
(Minister of Citizenship and Immigration), 2004 FC 629 at paragraph 15).
Analysis and Decision
[33]
Issue
1
Did the Board err in failing to consider whether prosecution
for violating a law of general application amounted to persecution?
The
applicant submitted that the Board erred in failing to consider whether
prosecution for his past involvement with the SLA would amount
to persecution. The Board found in fact, as follows, at page 7 of the tribunal
record:
. . . Even if the claimant were to be
prosecuted for his involvement as an alternate guard with the SLA I find that
this would be prosecution under a law of general application and not
persecution for a Convention ground. He did not indicate that his son was
mistreated while serving his time in prison. I find, on a balance of
probabilities that, the claimant would not be treated any differently than his
son had been if he were to be prosecuted and sentenced to any jail term.
[34]
The
Federal Court of Appeal in Zolfagharkhan, see above, set out the following
principles relating to the status of an ordinary law of general application in
determining the issue of persecution at page 552:
(1) The statutory definition of Convention
refugee makes the intent (or any principal effect) of an ordinary law of
general application, rather than the motivation of the claimant, relevant to
the existence of persecution.
(2) But the neutrality of an ordinary
law of general application, vis- à-vis the five grounds for refugee
status, must be judged objectively by Canadian tribunals and courts when
required.
(3) In such consideration, an ordinary
law of general application, even in non-democratic societies, should, I
believe, be given a presumption of validity and neutrality, and the onus should
be on a claimant, as is generally the case in refugee cases, to show that the
laws are either inherently or for some other reason persecutory.
(4) It will not be enough for the
claimant to show that a particular regime is generally oppressive but rather
that the law in question is persecutory in relation to a Convention ground.
[35]
I
have reviewed the Board’s decision and it does not appear that the Board dealt
with the issue of whether the ordinary law of general application was neutral vis-à-vis
the grounds for refugee status. In my view, the Board was required to take this
step. I do not know what conclusion the Board would have reached if this
analysis had been carried out.
[36]
Although
the applicant stated that he was not afraid of the Lebanese government, he also
stated that he feared going to jail for helping the SLA.
[37]
As
a result of my finding on this issue, I will not deal with the other issues
raised by the applicant.
[38]
The
decision of the Board is therefore set aside and the matter is referred to a
different panel of the Board for redetermination.
[39]
I
am not prepared to certify a question of general importance.
JUDGMENT
[40]
IT
IS ORDERED that the decision of the Board is set aside and the matter is
referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Legislation
Paragraph
95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
provides that refugee protection is conferred on a person who is determined by
the Board to be a Convention refugee or a person in need of protection.
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95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention
refugee or a person in need of protection; or
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95. (1) L’asile est la protection
conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle
de personne à protéger;
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Section 96 and
subsection 97(1) define “Convention refugee” and “person in need of protection”
as follows :
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger
la personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la Convention
contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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