Date: 20070201
Docket: IMM-2989-06
Citation: 2007 FC 112
Montréal, Quebec, the 1st day of February 2007
Present:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
LOTFI ABBES
NOURCHENE BEN KARIM
NOURHENE ABBES
AHMED ABBES
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review
brought under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA), against a decision dated May 10, 2006, of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board, according to which the applicants
are not “Convention refugees” or “persons in need of protection” within the
meaning of sections 96 and 97 of the IRPA.
[2]
The principal applicant, Lotfi Abbes, his wife
and two children, all citizens of Tunisia, arrived in Canada
on August 10, 2005, in possession of Canadian visitor visas. On August 17, they
claimed refugee protection in Canada.
[3]
They allege the following facts in support of
their claim.
[4]
The principal applicant and his family lived in Tunis. From 1988 to August 2005, Mr. Abbes
was a member of the GN (national guard), acting as a temporary officer who held
various positions over the years, the last one being that of protocol officer
in charge of welcoming dignitaries visiting senior GN officials.
[5]
He alleges having been subjected to harassment,
persecution and abuse by his superior at the GN for several years.
[6]
Since he feared
reprisals and could not resign from the GN or request a transfer, he left his
country for Canada with his family, never to
return. When he failed to report back for duty in the GN after taking his
annual holidays in August 2005, the Tunisian government issued a wanted notice
for his arrest.
[7]
The applicant alleges that his leaving his
employment with the GN (which is an organization in the service of the
President and the nation) meant that, if he were to return to Tunisia, he would be not only arrested, but
also jailed and charged with treason. In addition, because his acts would be
viewed by Tunisian authorities as treason, he believes he would be tortured and
fears for his life.
[8]
The RPD concluded that the principal applicant
did not demonstrate that, if he were to return, “he would be exposed to sanctions
disproportionate to the fact that he left his post without informing his
superiors”, and that, “absent evidence of the sanctions that might be imposed
on the claimant, this situation does not constitute persecution”.
[9]
Because the applicant’s wife based her fear of
persecution on the situation of Mr. Abbes, the RPD determined that her claim
for protection on this basis was unfounded.
[10]
The female applicant also based her claim on the
prohibition against wearing the veil, which is contrary to her religious
beliefs. On this point, the RPD concluded that “this relates to a law of general application in Tunisia respecting religious dress, that she is not affected
personally, and that this therefore does not constitute persecution”.
[11]
Case law
has established that intervention by the Court is warranted only if the
conclusions reached by the RPD are patently unreasonable, having regard to the
evidence before it (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), at paragraphs 3‑4).
In the case at bar, the RPD demanded documentary evidence to corroborate the
applicant’s testimony. Therefore, following the hearing, the applicant
submitted a brochure from the Tunisian department of the interior which dealt
with situations like his. According to this document, GN officers who are
authorized to take holidays outside the country and who do not return as
expected are summoned to appear before the honour board of the corps and are
dismissed. In
addition, the administration must issue [translation]
“a wanted
notice concerning the person in question with a view to his arrest and return
to his previous section in order to clarify his administrative status . . .
and retrieve property belonging to the corps”. Another sanction mentioned is
the refusal to renew Tunisian passports through consulates abroad [translation]
“in
order to force him to return to the country to resolve his administrative
situation”.
[12]
In spite of the relevance of such evidence,
which corroborates the applicant’s testimony about the consequences of
deserting his post, the RPD mistakenly concluded that he had not submitted any
personal documentary evidence other than the wanted notice. No reasons are
given in the decision as to why this relevant evidence was not taken into
consideration.
[13]
Case law has recognized on many occasions that a
Court is not required to refer to every piece of evidence before it (Hassan
c. Canada (Minister of Employment and Immigration), [1992] F.C.J. No.
260 (C.A.) (QL)). However, as was affirmed by Mr. Justice John M. Evans in Cepeda-Gutierrez
v. Canada
(Minister of Citizenship and Immigration), [1998]
F.C.J. No. 1425 (QL), at paragraph 17:
. . . the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts.
[14]
In the case at bar, given the relevance of the
document about the sanctions imposed on a person who does not report back for
duty, it was patently unreasonable for the RPD to disregard this document without
giving reasons.
[15]
With
regard to her being prohibited from wearing a veil, the female applicant argues
that even if this is a law of general application, it still infringes on her
fundamental right to freedom of religion and amounts to persecution.
[16]
In
concluding that the law did not constitute persecution, the RPD relied on the
“U.S. Department of State, International Religious Freedom Report 2004:
Tunisia”, which noted that, although the government restricts the wearing of
the veil and the police sometimes demanded that women uncover themselves, some
women still wore the veil, even in government offices. This fact was even admitted
by the applicant in her testimony before the RPD (Tribunal Record, pages 346‑347).
[17]
My colleague Madam Justice Anne Mactavish
recently had to consider whether a law of general application could give rise
to a claim of persecution and concluded that this was possible in certain
circumstances, for example, when “compliance with those laws would result in
the individual violating accepted international norms”
(Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC
421, [2005] F.C.J. No. 522 (QL) paragraph 108; see also paragraph 137).
[18]
However, the fact that
a law may contravene a religious practice is not necessarily sufficient to
characterize it as persecution.
[19]
In Kaya v. Canada (Minister of Citizenship and
Immigration), 2004 FC 45, [2004] F.C.J. No. 38 (QL), Mr. Justice Sean
Harrington dealt with an issue similar to the one in this case, that is, a
claim for refugee protection based on the legal prohibition in Turkey against
wearing a veil in public places or buildings.
[20]
At paragraph 13, he
concluded that legislation must be considered in its social context:
. . . Turkey is surrounded by religious Islamic
states and is situated in a politically volatile part of the world. While the
wearing of religious dress may not constitute a threat to the secular essence
of the Canadian state, it may well constitute a threat in Turkey. Laws must be considered in
their social context . . . . Exhibition of the
rituals and symbols of religion without restriction as to place or form could
cause pressure on those who do not practice that form of religion or who belong
to another religion . . . .
[Emphasis added]
[21]
In addition, he stated
the following at paragraphs 16 and 19:
16 . . . Turkish government is not harassing her or punishing her because of her
adherence to her particular interpretation of Islam. Turkey is attempting to maintain its secular nature in an area of the world in which
the wearing of religious dress carries with it considerable political
connotations.
. . .
19 The Turkish
government is not coercing anyone, man or woman, to wear religious dress. In
furtherance of its secular policies, religious dress of any sort is not to be
worn in government buildings.
[22]
In the case at bar, considering the lack of evidence about
the Tunisian law in question and about the social and political context in
Tunisia, I am of the opinion that it was not patently unreasonable for the RPD
to conclude that the female applicant did not discharge the burden of proof on
her so as to show that the law in question constituted persecution. I note the
principle expounded by the Federal Court of Appeal in Zolfagharkhani v. Canada (Minister of Employment and
Immigration), [1993] 3 F.C. 540, which concluded that laws of general
application must be presumed to be valid and neutral except if the applicant proves
that they are persecutory with respect to a Convention ground.
[23]
For the preceding reasons, the application for
judicial review is allowed. The decision of the RPD is set aside. The case is
referred back to a differently constituted panel for redetermination of the
principal applicant’s claim.
JUDGMENT
The application for judicial review is allowed.
The decision of the RPD is set aside. The case is
referred back to a differently constituted panel for redetermination of the
principal applicant’s claim.
“Danielle
Tremblay-Lamer”
Certified
true translation
Michael
Palles
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