Canada (Citizenship and Immigration) v. El Chayeb, 2005 FC 334

Date: 20050308

Docket: IMM-10489-03

Citation: 2005 FC 334

Montréal, Quebec, March 8, 2005

Present: The Honourable Madam Justice Johanne Gauthier

BETWEEN:

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Applicant

and

HUSSEIN EL CHAYEB

Respondent

REASONS FOR ORDER AND ORDER

[1]        The Minister of Citizenship and Immigration is asking the Court to quash a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board allowing Hussein El Chayeb’s claim for refugee protection and rejecting the Minister’s position that there were serious reasons for considering that Mr. El Chayeb had participated in crimes against humanity and should therefore be excluded from the benefit of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), pursuant to section 98.

[2]        Mr. El Chayeb is a stateless Palestinian who has lived almost all his life in the Mia Mia camp in Lebanon. He claimed refugee status and the status of a person in need of protection because he feared being persecuted or mistreated and tortured by members of Fatah, a branch of the Palestine Liberation Organization (PLO), for his political opinions. He alleged that he was forced by Fatah members to be part of the association of Fatah teachers, of which he was president. Beginning in 1993, he was also compelled to give information sessions on Fatah’s aims and their fight against Israel to recover Palestine. These sessions were given twice a month on Fatah premises to young Palestinians, several of whom were students of his at the primary school.

[3]        In 1999, after taking voluntary early retirement as a teacher at the primary school where he had worked since 1968, he refused to continue participating in Fatah activities. Shortly after this refusal, he was threatened by hooded Fatah members. In July 2002, after receiving a letter of invitation enabling him to get a U.S. visitor’s visa, he left the camp, leaving behind his wife and youngest son.

[4]        According to the RPD, Mr. El Chayeb also feared being persecuted by the Lebanese government because of his nationality.

[5]        Although the RPD noted that the respondent had demonstrated an obvious reluctance to clearly answer certain questions he had been asked, it believed that his testimony was credible on the whole. Further, though he was now retired, it noted he had lived his entire life in the camp and had experienced restrictions imposed by the Lebanese government on work and access to education. If he had to return to the Mia Mia camp, he would also be severely restricted with regard to social services, health care in particular. It concluded that these cumulative discriminatory measures constituted persecution, and said:

In addition, the claimant’s refusal to work for Fatah and the atmosphere of intimidation which he claims he had to face lead the panel to conclude that he had to live in a climate of apprehension and insecurity which, together with the restrictive measures imposed by the Lebanese government, is consistent with a reasonable fear of persecution as regards his future.

In view of the facts mentioned above, the panel believes that the claimant has demonstrated a justified fear of persecution on the basis of his nationality.

[6]        The reasons supporting the conclusion that Mr. El Chayeb is a refugee and a person in need of protection (inclusion) are brief. They are set out on one page. The bulk of the decision is an analysis of whether he should be excluded under section 98 of the Act.

[7]        The RPD dismissed this argument on the basis that the applicant had failed to show that Fatah was an organization with a limited, brutal purpose, or that the respondent had personally taken part in crimes against humanity (such as the use of adolescents in suicide bombing attacks) allegedly committed by Fatah.

[8]        In this regard, the RPD considered that although the respondent had knowingly taken part in training activities organized by Fatah for a period of nearly six years, he had done so against his will. It concluded that the Minister had failed to show that “the claimant was in any way tied to the committing of a crime against humanity, that he had been an accessory to it or that he had incited these students to hate or murder.”

Issues

[9]        First, the applicant submitted that the RPD allowed the claim for refugee protection without considering all the relevant evidence before it. In this regard, the applicant referred in particular to two documents dated October 20, 1999, and April 28, 2002, respectively, which dealt specifically with recruitment practices in the Palestinian camps and punishments imposed on those who refused to join organizations such as the PLO.

[10]      The applicant argued that the RPD failed to consider the documentary evidence that Palestinians, including those living in the Mia Mia camp, did in fact have access to health care provided by UNWRA.

[11]      Further, the Minister raised a great many errors that the RPD apparently committed when it concluded that exclusion under section 98 of the Act did not apply.

[12]      Inter alia, the RPD:

            (i)         applied the wrong legal principle in analyzing the respondent’s complicity;

            (ii)        required a higher level of proof than the standard laid down by the courts;

            (iii)       erred on the definition and scope of the available defence of duress;

            (iv)       failed to consider whether participation in the recruitment of adolescents is a war crime.

[13]      The respondent left Canada in April 2004 to visit his wife in Lebanon.^[1] Accordingly, he was not present at the hearing. He also did not file a memorandum and his counsel withdrew from the case shortly after he left. However, his son, who lives in Canada, had an opportunity to make oral submissions. He commented on the arguments put forward by the applicant, indicating that:

            (i)         his father had never taken part in the information sessions organized by Fatah of his own accord. A Fatah representative was always present to watch him at his sessions and he was in fact threatened by masked men;

            (ii)        the main purpose of the Fatah association of teachers was to defend teachers’ rights;

            (iii)       Fatah should not be confused with the death squads responsible for the attacks (suicide bombings) referred to by the applicant;

            (iv)       as indicated in the transcript, the interpreter had difficulty translating one of his father’s answers and confused the word “join” with “recruit”;

            (v)        despite the documentary evidence in that regard, there were no real health services in the Mia Mia camp.

[14]      On this last point regarding the lack of health services, the Court notes that this matter was not discussed with the respondent at the hearing before the RPD. The Court cannot consider the submissions of Mr. El Chayeb’s son on this point, since the evidence was not before the RPD.

[15]      If, as the applicant submitted, it was patently unreasonable for the RPD to find that the respondent had established a reasonable fear of persecution, the decision will have to be quashed in view of its finding that the respondent should not be excluded under article 98 of the Act.

[16]      As mentioned, the RPD based its finding on two points: (i) persecution by the Lebanese government, in view of the restrictions imposed in the Mia Mia camp, particularly on access to health care; and (ii) pressure from Fatah on the respondent to join their organization and continue to take part in their activities.

[17]      On the first point, it is worth noting that the respondent did not refer in his PIF or testimony to a fear of being persecuted on account of the limited availability of social services and health care in the Mia Mia camp. This point simply was never discussed.

[18]      In its decision, the RPD referred to only two documents in this connection:

            (i)         Exhibit A-4, regional binder 2.1. This document appears to be the one referred to by the applicant, a document entitled Lebanon, Country Conditions, April 2002. The only relevant section is paragraph 5.65, which reads as follows:

5.65 In Lebanon, UNWRA runs 74 schools and estimates that about 95 per cent of Palestinian children receive primary and lower secondary education. The agency also operates 18 full-scale health centres located in refugee camps, as well as 6 smaller clinics, and has also reached agreement with 12 private hospitals for the treatment of refugees. In addition, UNWRA provides emergency aid to families unable to support themselves. (Reference omitted)

            (ii)        the second document is entitled Report on Fact-Finding Mission to Lebanon (May 1998), and indicates:

The UNRWA explained that it operates 18 full-sclare health centres, located at refugee camps, as well as six smaller health clinics. The health centres provide Palestinians with the necessary medication and other medical treatment. In addition the UNRWA has reached agreements with 12 private hospitals throughout the country for the treatment of Palestinian refugees. However, it does not have the resources to pay for the most expensive operations and courses of treatment in the areas of neurology, cardiovascular diseases, cancer and intensive care. In such cases, in which the cost of treatment can easily amount to US $15 000 to 20 000 per patient, the UNRWA can at most offer to meet 50% of the cost, which among patients with an average income of about US $250 a month inevitably gives rise to fatalities as a result of inadequate treatment or going untreated. Particularly on the delegation’s visits to camps, the issue of the UNRWA’s shortage of resources to meet health needs was raised time and again. All camp committees met by the delegation mentioned the problem, including the fact that for hospital treatment the UNRWA cannot afford to pay more than US $2 500 per patient. For further details, see section 6.

[19]      Section 6 states that “Health matters are UNRWA’s responsibility and there are problems with very serious illnesses requiring hospitalization”. This is followed by comments on each camp, including Mia Mia. On this camp, the report confirms that “the camp has a health center with a staff of nine attended by an average of 113 patients a day”.

[20]      As this point was not in any way discussed at the hearing, the respondent never had an opportunity to comment or to indicate whether the above services were insufficient in view of his condition. There was no evidence that the respondent, a man 61 years of age, was suffering from any illness that required or might require hospitalization and that he would not have the necessary financial resources if the need arose.^[2]

[21]      In the circumstances, the Court is satisfied that the RPD disregarded the evidence, or found despite the lack of evidence that Mr. El Chayeb would be severely restricted with regard to access to health care, and even if he could pay in hospitals, he would run the risk of not being admitted because Lebanese citizens might get priority at that time.

[22]      Further, the Court noted that there was absolutely no indication that Mr. El Chayeb suffered from restrictions on his education and employment. In fact, he had worked throughout his life until his retirement in 1999. He was a teacher and there was no indication he did not have access to adequate education. Further, as section 96 is concerned with evaluating the persecution a claimant might suffer in the future, it is hard to see how these restrictions could be relevant. Mr. El Chayeb is retired and did not testify that he would like to start working again.

[23]      On the atmosphere of fear and insecurity resulting from his refusal to work for Fatah, the Court is satisfied that the two documents prepared by the Research Directorate of the Immigration and Refugee Board, entitled Lebanon: Whether the Various Palestinian Factions Practice Forced Recruitment and Lebanon: Current Recruitment Practices of the Palestine Liberation Organization and the Penalties for Refusing to Become a Member, were relevant.

[24]      As these two documents appear to have been the sole documentary evidence in the record on this point, and in part contradict the respondent’s testimony on a matter central to his claim, the RPD should have commented on them.

[25]      In view of the brevity of the reasons, the absence of any analysis and irrelevance of most of the RPD’s comments regarding the nature of the claim as presented in the PIF and at the hearing, the Court has no hesitation in concluding that the decision is patently unreasonable and should be quashed.

[26]      In the circumstances, there is no reason to discuss the other arguments raised by the applicant, particularly considering that a number of them deal with points of law and the application of well-established principles in case law and require no special comment. The issue of whether the recruitment of children under 15 is a war crime was not argued before the RPD. The applicant will accordingly have an opportunity to raise this point when the matter is reconsidered.

[27]      It is clear that the panel redetermining this claim will have to hold a new hearing, so that the respondent can be examined on all these issues.

[28]      Before closing, the Court notes that Mr. El Chayeb’s son indicated at the hearing that his father could not return to Canada because he was being denied entry for lack of documentation establishing his refugee status.

[29]      Having sought and obtained the Court’s intervention in this matter, it is crucial for the applicant to do whatever is necessary to ensure that if Mr. El Chayeb still wishes to claim refugee status, he can be present when his case is reconsidered.

[30]      As indicated by the applicant, it is possible that under section 108 of the Act, Mr. El Chayeb lost refugee status or the status of a person in need of protection when he voluntarily reavailed himself of the protection of his country of nationality, or by voluntarily becoming re-established in the country he left and from which he sought refugee protection in Canada. As such, it is important for the respondent to have an opportunity to make submissions in this regard.

[31]      No question was submitted for certification and the Court is satisfied that this case raises no question of general importance.

ORDER

THE COURT ORDERS:

The application is allowed. The claim for refugee protection of Hussein El Chayeb shall be redetermined by a different panel that will hold a new hearing.

Certified true translation

Peter Douglas

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                  IMM-10489-03

STYLE OF CAUSE:                                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

HUSSEIN EL CHAYEB

Respondent

PLACE OF HEARING:                                            Montréal, Quebec

DATE OF HEARING:                                              December 8, 2004

REASONS FOR ORDER AND ORDER BY:        THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER

DATED:                                                                     March 8, 2005

APPEARANCES:

Ian Demers                                                                   FOR THE APPLICANT

Hussein El Chayeb                                                        FOR HIMSELF

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                                      FOR THE APPLICANT

Deputy Attorney General of Canada

Montréal, Quebec