Smoudi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1139

Date: 20050822

Docket: IMM-9192-04

Citation: 2005 FC 1139

Ottawa, Ontario, August 22, 2005

PRESENT:    The Honourable Mr. Justice O=Reilly

BETWEEN:

AHMAD AL BADAWI SMOUDI

RAJAA ALOUCH

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]     Mr. Ahmad Al Badawi Smoudi is originally from Syria, but became a citizen of Paraguay after he moved there in 1986. He first came to Canada in 1995 for business reasons, but ended up making a claim for refugee protection here when both his Canadian work visa and Paraguayan citizenship expired.

[2]     A panel of the Immigration and Refugee Board dismissed Mr. Smoudi=s claim primarily because it regarded his behaviour as inconsistent with a genuine fear of returning to Syria. It also disbelieved his assertion that he evaded military service in Syria because he was a conscientious objector. Mr. Smoudi argues that the Board=s findings are unsupported by the evidence and asks me to order a new hearing of his claim. I agree that a new hearing is required and will grant this application for judicial review.

I.         Issue

[3]     Mr. Smoudi argues that the Board made a number of errors in the course of its reasons. However, since I have concluded that the Board=s error in one particular area requires a new hearing, I will confine myself to that issue: Did the Board fail to consider the treatment Mr. Smoudi might receive for having evaded military service?

II. Analysis

[4]     Did the Board fail to consider the treatment Mr. Smoudi might receive for having evaded military service?

[5]     As mentioned, the Board found that Mr. Smoudi had not behaved as a person who really feared returning to Syria. He had allowed his Paraguayan citizenship to lapse, and did not make a refugee claim until the day before he was scheduled to leave Canada. The Board also made negative credibility findings about Mr. Smoudi=s allegation that Syrian authorities were interested in him for political reasons, and his claim that he left Syria as a conscientious objector.

[6]     Based on its analysis of the evidence, the Board=s ultimate conclusion was that Mr. Smoudi was neither a Convention refugee (under s. 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, see attached Annex), nor a person at risk of cruel and unusual treatment or punishment (under s. 97 of the Act). However, as I read the Board=s reasons, it did not actually analyze the s. 97 issue. None of its other findings, even if correct, touched on the risk that Mr. Smoudi might experience for having evaded military service.

[7]     I realize that, in some situations, negative credibility findings in relation to s. 96 will obviate the need to consider s. 97. However, that is not always the case. I agree with Justice Edmond Blanchard when he said:

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. (Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No. 1540)

[8]     The Board clearly found that Mr. Smoudi would be subject to prosecution for having evaded military service. However, it also found that Mr. Smoudi had not shown that he would receive Adisproportionately severe punishment@ for that offence. In fact, Mr. Smoudi 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.

[9]     In my view, the Board failed to address an important issue and to consider relevant evidence. It also erred in law when it faulted Mr. Smoudi for not proving that his punishment as a military evader was tied to a Convention ground. Under s. 97 of the Act (unlike s. 96), it is unnecessary for an applicant to show that the mistreatment feared is a product of persecution on particular grounds.    The sole question is whether the application faces a substantial risk of torture, death or cruel and unusual treatment or punishment, whatever may be the basis for it.

[10]                        Accordingly, I must grant this application for judicial review. I have considered whether to order a new hearing solely in relation to the s. 97 issue, given the particularity of the Board=s error. However, the question of the potential risk to Mr. Smoudi cannot be isolated completely from the other evidence before the Board. Out of caution, I will order a new hearing of Mr. Smoudi=s full claim.

[11]                        Counsel requested an opportunity to propose a question of general importance for me to certify. I will consider any submissions filed within 10 days of the issuance of these reasons.

JUDGMENT

THIS COURT=S JUDGMENT IS that:

1.       The application for judicial review is granted;

2.       A new hearing is ordered;

3.       Any question of general importance for certification must be filed within ten (10) days from the issuance of these reasons.

AJames W. O=Reilly@