Date: 20000817
Docket: IMM-5452-99
BETWEEN:
MAHMOUD EL-BEKAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] Mahmoud El-Bekai (the "applicant") is a stateless Palestinian born in a refugee camp in Lebanon. He was an elementary school teacher working with the United Nations Relief and Works Agency for Palestine Refugees in the Near East.
[2] He fled Lebanon, came to Canada and made a refugee claim based on a well-founded fear of persecution in Lebanon at the hands of the Syrian Intelligence Service because of his political opinion arising out of his activities in the Teachers" Union 1996 election.
[3] The Refugee Division of the Immigration and Refugee Board (the "Tribunal") in its October 19, 1999 decision, rejected his claim. The applicant, in this judicial review application, argues the Tribunal committed a number of errors of law including (1) misinterpreting the meaning of political activity and political opinion; (2) failing to consider the second ground advanced by him, namely, his membership in a particular social group " his family; (3) failing to rule on his claim as a refugee sur place ; and (4) erroneous adverse findings of credibility not based on the evidence.
THE TRIBUNAL"S DECISION
[4] The Tribunal accepted the applicant played a role in the 1996 elections of the Teachers" Union whose purpose it said was to work for the rights of teachers. He was asked to run in the elections but declined claiming his family was well-known for their political stand in the community.
[5] The Tribunal, at page 3 of its decision, examined the applicant"s role in the election. The Tribunal wrote as follows:
| When asked to say what role he played in the 1996 Teachers" Association elections he responded that, "I used to go to teachers" houses and ask them to support our candidate". The claimant was asked whether the two pro-Arafat candidates, who won the seats in the Bekaa Valley Teachers" Association, are still living and working in Lebanon and he responded that they were. When asked why they were able to live and work in Lebanon without problems and yet he, who only supported them, alleges that he cannot safely live there, he responded that, "There was nothing against them. For me it is my family". The claimant wrote in his Personal Information Form that his late brother Hussein had been Secretary General of the Arafat Fattah organization. The panel notes that the claimant"s siblings continue to live and go about their business in Lebanon without any apparent problems from the Syrian Intelligence. There is insufficient credible evidence before the panel to indicate that the claimant would be treated any differently by the Syrian Intelligence if he went about doing his regular business of teaching or any other occupation. The panel finds that there is less than a mere possibility that the claimant would be persecuted if he were to return to Lebanon today. |
[6] The Tribunal"s reference to the two pro-Arafat candidates stems from its appreciation of the applicant"s testimony which the Tribunal described at page 1 of its decision in the following terms:
| He alleged that as the Teachers" Association elections approached one of his colleagues, a friend, asked him to stand for elections in the pro-Arafat camp of the Teachers" Association but that he declined. He alleged that the friend then asked him to lend his support to a candidate in the pro-Arafat camp. He testified that the teachers were divided in two camps; one that supported Yasser Arafat and the other that supported the Syrians. He testified that he agreed to support the pro-Arafat candidate and that he actively canvassed his colleagues to vote for the pro-Arafat candidate. |
[7] The Tribunal then noted the applicant"s testimony that after the elections, in which the pro-Syrian candidates lost, he experienced a number of problems including his arrest on January 1, 1997 by the Syrian Intelligence officials who, according to the applicant, took him to their headquarters in the Bekaa Valley where he was held for two days, tortured and released with a warning to change his political philosophy or face more torture. The Tribunal noted an alleged second arrest by Syrian Intelligence officials one month later where, according to the applicant, he was beaten, interrogated and accused of spying for Canada because he was able to obtain a Canadian visa to visit his family in Canada.
[8] It is of record that his brother Hussein fled Lebanon in 1989, came to Canada and was accorded refugee status.
[9] The Tribunal discussed the applicant"s brother Abdullah and his two sisters who remain in Lebanon noting that the applicant testified none of them were politically active and had no problems with the Syrians that he knows of.
[10] The Tribunal, at page 4 of its decision, made this finding as to whether the applicant was politically active in Lebanon:
| The panel finds that the claimant was not politically active in Lebanon. His membership and role in the Teachers" Association was that of a regular member of the association whose function was restricted to the work related interests of the teachers. His role in the elections of the association in 1996 was limited to going to teachers" houses to canvass them to vote for candidates of his choice. The panel notes that the teachers were divided in two factions: one supported the Syrians while the other supported Arafat"s peace initiatives. The panel finds that the mere fact that one belongs to one faction and not the other is not sufficient to justify allegations of persecution. The candidates who belong to the pro-Arafat faction that the claimant supported continued to teach and live in the Bekaa Valley in Lebanon without any problems. |
| The claimant"s brother Abdullah and his two sisters also continue to live and work in the Bekaa Valley. |
[11] The Tribunal did not believe the applicant was arrested and tortured in January 1997 and based its conclusion finding that there was insufficient credible evidence before the panel to indicate that the Syrian Intelligence had any interest in the claimant at the time.
[12] The Tribunal also did not believe the applicant was arrested the second time because it did not accept his allegation the Syrians suspected him of being a Canadian spy noting the claimant had no problems with the Syrians after his return to Lebanon following his visit in 1995. The Tribunal said it was reasonable to infer the Syrians would have arrested the claimant and interrogated him shortly after his return to Lebanon if they had reason to believe or if they suspected he was a spy.
[13] In support of his claim, the affidavit of Hoda Tarabay, a citizen of Lebanon who was coming to Canada for a visit in August 1998 to visit her two sisters here, was filed.
[14] Before coming to Canada, at her sister"s request, she went to see the El-Bekai family in Lebanon to inquire if they wanted her to bring gifts to Canada. She deposed that immediately upon leaving the El-Bekai home, she and her husband were stopped by Syrian Security Forces who inquired about the purpose of her visit. She also deposed that three days later she was visited at her home by three members of the Syrian Security Forces who enquired whether she had received anything from the El-Bekai family to which she said no. She deposed she was asked to contact the security office if members of the El-Bekai family gave her anything to bring to Canada.
[15] She deposed that on August 8, 1999, when she arrived at Beirut International Airport, she was taken into the Syrian Security Office where her suitcases were inspected. She deposed she was told that it was a security check to be sure she was not delivering anything to the applicant.
[16] The Tribunal discounted this affidavit by finding there was no Syrian Intelligence interest in the claimant prior to his departure from Lebanon. Furthermore, the panel found it implausible the Syrian Intelligence would have suspected or known of Ms. Tarabay"s visit to the claimant"s family and would have waited for her to leave the home with the hope of finding her with items from the claimant"s family. The panel concluded there was insufficient credible evidence before it to indicate that the Syrian Intelligence had the claimant"s family home under surveillance and determined the affidavit was crafted to embellish the claim. It gave the affidavit little or no weight.
[17] Garda Kadri, the applicant"s niece, testified before the Tribunal. She is a Canadian citizen. Her testimony related to a visit she made to the El-Bekai family in Lebanon. She testified as to the location of the El-Bekai family home there; it is right outside a Syrian Army base and, as a result, she had to undergo several security checks. On one such visit, three men entered the El-Bekai family home and questioned her about the applicant"s whereabouts. She testified on leaving the home one of the men said "We"ll catch him and we know how to deal with him". In addition, she testified that, at the airport, a Syrian Security Police took some family photos from a photo album which the applicant"s wife gave her to carry back to Canada (the applicant"s wife and children are still in Lebanon).
[18] The Tribunal commented on her evidence. It said the panel found no Syrian Intelligence interest in the claimant before his departure from Lebanon to come to Canada and found it implausible the Intelligence authorities would expend their time and resources to go to Ms. Kadri"s home looking for information about the claimant"s activities in Canada when they have no interest in the claimant. The Tribunal said it was equally implausible that they would take his picture from the album given by the claimant"s wife if they knew he was in Canada and concluded there was insufficient credible evidence before the panel to indicate that Syrian Intelligence would be interested in what the claimant did in Canada. The Tribunal concluded at page 6 by saying: "Ms. Kadri is a niece of the claimant and her evidence is found to be self-serving and intended to embellish the claim".
ANALYSIS AND CONCLUSIONS
[19] In my view, there are three reasons why the Court must intervene to set aside the Tribunal"s decision.
| (1) Misinterpretation of the meaning of political opinion |
[20] A well-founded fear of persecution for reason of political opinion is one of the specified grounds in the definition of "Convention refugee" contained in the Immigration Act . La Forest J., writing on behalf of the members of the Supreme Court of Canada, considered in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 746 the scope to be given to the words "political opinion". He wrote this:
| Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground "that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party . . .". The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. |
[21] La Forest J. preferred the more general interpretation of "political opinion" suggested by Goodwin-Gill at page 31 of his book:
| "Any opinion on any matter in which the machinery of state, government and policy may be engaged". |
[22] It is apparent to me the Tribunal erred in law when it found that the applicant was not politically active in Lebanon. It made this erroneous finding because the Tribunal adopted a narrow view of what the Teachers" Association was all about in the specific context of what was happening in Lebanon in 1996. The Tribunal discounted the fact the teachers were split into two camps: one pro-Syrian and the other pro-Arafat based on an eminently political question " the peace process in the Middle East. Moreover, the Tribunal ignored why the Syrian Government might be interested in such matters i.e. , because of the influence teachers have on pupils.
[23] Counsel for the respondent, to his credit, acknowledged the Tribunal had committed an error but argued the mistake was not material. I accept counsel for the applicant"s point that when the Tribunal"s decision is read as a whole, this finding went at the heart of its decision.
[24] Clearly, the applicant was expressing a political opinion in this specific context when he canvassed for a pro-Arafat candidate.
| (2) The family as a particular social group |
[25] Canadian refugee law has recognized the family as a particular social group which, in certain circumstances, might attract a well-founded fear of persecution. The Tribunal committed a second error when it failed to consider why the Syrian authorities in Lebanon might be the agents of persecution of some members of the El-Bekai family.
[26] The Tribunal knew that the applicant"s brother had been Secretary General of the Fattah Organization and had made, in 1989, a successful refugee claim in Canada.
[27] Before the Tribunal, the applicant testified that "the whole El-Bekai family is suffering from that".
[28] The failure of the Tribunal to consider this family as a target of prosecution may well have been at the root of some of the implausibility and lack of credible evidence findings made by the Tribunal.
| (3) Misconstruing the evidence |
[29] All courts have said on many occasions that implausibility and credibility findings are at the centre of the mandate of the Refugee Division provided those findings rest on a proper evidentiary foundation when the evidence is considered as a whole and such findings are not grounded on surmise and speculation.
[30] Since I have found this judicial review must be allowed and the Tribunal"s decision quashed, I need not fully canvass this issue but do choose to give two illustrative examples.
[31] One of the main considerations motivating the Tribunal"s decision was their finding that the two pro-Arafat candidates continued to live and work in Lebanon without any problems. The applicant, in his testimony, explained why this was so; it was because these candidates were not openly pro-Arafat (transcript, page 318) and he, the applicant, was targeted by the Syrian authorities because he had been reported to them as being anti-Syrian by a pro-Syrian candidate in the elections against whom the applicant was working to defeat (transcript, pages 309, 317, 320, 321 and 326). Nowhere in the Tribunal"s decision is there any discussion of this testimony, leading to the inference that the Tribunal ignored the evidence.
[32] Second, the Tribunal was dismissive of Hoda Tarabay"s affidavit evidence which confirmed the interest the Syrians still had in the applicant. The Tribunal"s finding of implausibility, resting as it did on her visit to the El-Bekai family, ignores the fact this home was just outside the Syrian Army base and people could easily be seen entering the home.
DISPOSITION
[33] For all of these reasons, this judicial review application is granted, the Tribunal"s decision is set aside and the applicant"s claim is remitted for
reconsideration by a differently constituted panel of the Refugee Division. No certified question was proposed and none is formulated.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
AUGUST 17, 2000
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