François v. Canada (Minister of Citizenship and Immigration), 2005 FC 520

Date: 20050419

Docket: IMM-6188-04

Citation: 2005 FC 520

Ottawa, Ontario, April 19, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

ROUKOZ FRANÇOIS

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]       François Roukoz is a citizen of Lebanon who claims to have a well-founded fear of persecution based upon his involvement with the student wing of the Forces Libanaises ("FL").

[2]       The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Roukoz's claim, finding that much of his testimony was not credible. Mr. Roukoz now seeks judicial review of the Board's decision, asserting that a number of the Board's credibility findings were patently unreasonable.

Mr. Roukoz's Allegations

[3]       Mr. Roukoz is a Maronite Christian, and a member of the FL. The FL is a Christian group that supports the liberation of Lebanon from the Syrian military. While the FL was officially abolished in 1994, it continues to operate on a clandestine basis. Membership in the FL is illegal in Lebanon.

[4]       Mr. Roukoz says that he became involved with the student section of FL in 1996. In 1999, he formally joined the organization.

[5]       Mr. Roukoz says that he was detained by the Lebanese intelligence services in 2000, who were seeking information regarding the FL. He claims to have been mistreated during the course of this detention.   

[6]       On August 7^th, 2001, Mr. Roukoz took part in a protest. The demonstrators were demanding the removal of Syrian forces from Lebanon. During the demonstration, secret police forces (both Syrian and Lebanese) started to beat some of the protesters, although Mr. Roukoz says that he managed to escape unharmed.

[7]       Two days later, Mr. Roukoz was again picked up by members of the Lebanese intelligence service, and was interrogated regarding his participation in the demonstration. After this detention, Mr. Roukoz was kept under surveillance, presumably by Lebanese intelligence forces.

[8]       Mr. Roukoz received a second threat - this time in the form of Kalashnikov bullets left in front of his house. Mr. Roukoz immediately left his village, going to stay with his parents in Beirut, where he continued his involvement in FL activities.   

[9]       In the Spring of 2002, Mr. Roukoz claims to have been detained and interrogated by the Lebanese secret police with respect to FL activities on two occasions. On April 26^th, 2002, Mr. Roukoz was attending an FL meeting when shots were fired at Mr. Roukoz and his FL colleagues Ramzi, Eid and Mrad. No one was injured, and all managed to escape. It was this incident that prompted Mr. Roukoz to flee Lebanon.

[10]     Mr. Roukoz arrived in Canada on May 16^th, 2002, making his refugee claim on May 30^th, 2002.

The Board's Decision

[11]     Credibility was the determinative issue for the Board. In its decision, the Board identified several reasons for concluding that Mr. Roukoz was not a credible witness.

[12]     Having concluded that Mr. Roukoz was not credible, the Board went on to find that he had not established that he had been persecuted in Lebanon, nor had he established that there was more than a mere possibility that he would be persecuted in the future, if he were to return to Lebanon. Accordingly, his refugee claim was rejected.

Issue

[13]     The only issue on this application is whether the Board's credibility findings were patently unreasonable.

Analysis

[14]     Mr. Roukoz has challenged several findings made by the Board. Having reviewed the record, including the transcript of the hearing, and the country condition information., I am satisfied that a number of the impugned findings were reasonably open to the Board and should not be disturbed.

[15]     However, for the reasons set out below, and notwithstanding the highly deferential standard of review to be applied in such cases, I am satisfied that the Board erred in relation to several findings, each of which will be addressed in turn.

The Membership Card

[16]     Mr. Roukoz testified that he had been a member of the FL since 1999. In support of his claim, Mr. Roukoz produced a copy of his FL membership card. The card records Mr. Roukoz's "Date d'affiliation" as 01/06/2001. From this, the Board concluded that Mr. Roukoz's claim that he joined the FL in 1999 was not credible.

[17]     When this apparent discrepancy was put to Mr. Roukoz at the hearing, Mr. Roukoz explained that he had lost his original membership card, and that the card produced at the hearing was issued by the FL as a replacement. Mr. Roukoz pointed out that the card number was 574/99. According to Mr. Roukoz, this demonstrates that he had originally joined the FL in 1999.

[18]     The Board rejected Mr. Roukoz's story of having lost his card as not being credible, stating that it preferred to rely on the "Date d'affiliation" referred to on the face of the membership card. The Board did not, however, address the fact that the card number was 574/99, nor did it give any reason for discounting Mr. Roukoz's argument that this corroborated his claim to have joined the FL in 1999.

[19]     An adjudicative body will be presumed to have considered all of the evidence before it. However, where there is material evidence that runs directly contrary to the Board's finding on a central issue, there is an obligation on the Board to analyse that evidence, and to explain why it prefers other evidence on the point in question: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).

[20]     While it is certainly open to the Board to prefer documentary evidence to that of a refugee claimant, where the documentary evidence in question arguably could lead to two different possible conclusions, it is incumbent on the Board to explain why it chose one conclusion over the other. This is especially so where, as here, the issue of Mr. Roukoz's membership in the FL, and the consequences that flowed from that membership, were central to his claim.

The Imprisonment Issue

[21]     In his testimony, Mr. Roukoz claims that he was detained on at least four occasions. However, on May 30, 2002, Mr. Roukoz signed a form with respect to his refugee claim in which he avers that he was never detained or imprisoned in Lebanon. From this, the Board drew a negative inference against Mr. Roukoz, finding that he was never detained or imprisoned.

[22]     Mr. Roukoz was asked about this discrepancy in his testimony. He explained that he did not complete the form himself, and that it was filled out by a lady at the Citizenship and Immigration office. The form was completed in English, a language which Mr. Roukoz does not understand very well.

[23]     The Board's reasons do not indicate that it gave any consideration to this explanation. The question of whether or not Mr. Roukoz was detained while living in Lebanon was central to his claim. Thus, once again, while it was open to the Board to reject Mr. Roukoz's evidence in this regard, it was not open to the Board to disregard it.

The Sarkis Letter

[24]     Mr. Roukoz provided the board with a letter from Joseph Sarkis. Mr. Sarkis is the President of the "Kateab and Forces Libanaises" in Ottawa. The letter confirms Mr. Roukoz's ongoing involvement with Kateab and the FL in Canada since his arrival in Canada in May of 2002.

[25]     The letter also states that the situation in Lebanon continues to be unstable for all members of the FL, especially those leading the student movement.

[26]     The Board rejected the probative value of this letter because it did not say that Mr. Roukoz himself would be at risk if he were to return to Lebanon, because of his membership in the Canadian organization.

[27]     The Board did not question the authenticity of the letter, which clearly demonstrates Mr. Roukoz's ongoing commitment to the FL cause. The letter asserts, rightly or wrongly, that all members of the FL are at risk in Lebanon. It was up to the Board to weigh this letter, and to ascribe to it the probative value it deemed appropriate, within reason. However, the question of whether Mr. Roukoz would himself be at risk if he were to return to Lebanon was a question for the Board, and not for Mr. Sarkis. In the face of Mr. Sarkis' description of the situation that all FL members face in Lebanon, it was, in my view, patently unreasonable for the Board to dismiss this letter for the reason given.

Conclusion

[28]     While I have found that the Board did not err in relation to a number of its factual findings, it did err in relation to several other findings which go to the heart of Mr. Roukoz's claim. Although I accept the respondent's submission that the decision must be read as a whole, and should not be subjected to a microscopic examination, I cannot say with any certainty that the Board would have come to the same conclusion in relation to this claim, had these errors not been made. As a consequence, the application for judicial review is allowed.

Certification

[29]     Neither party has suggested a question for certification, and none arises here.           

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.

2.          No serious question of general importance is certified.