Date: 20070116
Docket: IMM-2481-06
Citation: 2007 FC 34
Ottawa, Ontario, January 16, 2007
Present: The Honourable Madam Justice Johanne Gauthier
BETWEEN:
SABA
ASAAD HADDAD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Haddad is asking
the Court to set aside the decision by the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the RPD) dismissing his claim for
refugee protection on the grounds that there were serious reasons for believing
that he had participated (as an accomplice by association) in crimes against
humanity committed by the Lebanese Forces
(Section 1F(a) of the United Nations Convention relating to the
Status of Refugees), and that he was therefore excluded under section 98 of
the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act).
[2]
For the following
reasons, I am satisfied that the application for judicial review must be
dismissed.
Relevant
facts
[3]
Mr. Haddad is a
citizen of Lebanon who arrived in Canada on April 16, 2004, at which date he
indicated his intention to claim refugee status.
[4]
The applicant stated
that he had a well-founded fear of persecution in Lebanon because of the
political opinions that were attributed to him. More precisely, at his first
hearing before the RPD, the applicant indicated that he had worked for the
secret service of the South Lebanese Army (SLA) from 1977 to 1987 and that,
since 1999, he has been threatened by Hezbollah supporters who hold against him
that he collaborated with the Lebanese Forces and/or the SLA. At that time, he
also indicated that his work consisted in obtaining information from friends,
and by telephone, as to Hezbollah activities, in particular [translation]
“where they
have centres or positions . . . what they are doing, where they are going . . .
” (at page 422 of the
certified file).
[5]
During subsequent
hearings, the applicant changed his story. Rather, he indicated that he has
been working for the Lebanese Forces, another Christian militia operating in
southern Lebanon. From 1977 to 1984, his work consisted in sailing on a small
ferryboat (20 to 25 passengers) belonging to the Lebanese Forces which shuttled
between Beirut and Israel. He claimed to have accepted this work because he didn’t
want to engage in combat for the Lebanese Forces and because he could swim and
could therefore act as a lifeguard in an emergency. He also had to gather all
useful information exchanged by the passengers. Although the ferryboat ceased
sailing in 1984, the applicant continued to be paid by the Lebanese Forces
until 1987, even though, according to him, he never in fact supplied any
information coming from the passengers from 1977 to 1984 nor provided any other
services beyond 1984.
[6]
To explain his first
testimony, the applicant stated that it was the Lebanese Forces who had asked
him to forward to the SLA whatever useful information he heard. However, here
again, he indicated that in fact, he never supplied any information to the SLA.
[7]
It is in this context
that the SLA or the Lebanese Forces are said to have warned him in 1990 that he
was listed as a [translation] “collaborator” in Hezbollah files and that he
should not go to Tyre where he was being sought.
[8]
In its decision, the
RPD noted that it was the Minister who was seeking exclusion pursuant to
Section 98 of the Act who bore the burden of proof. It recalled that it was the
Minister’s duty to establish that there were [translation] “serious reasons for
believing that an individual has committed a crime against humanity.” On the
basis of the decision of the Federal Court of Appeal in Ramirez v. Canada (M.C.I.), [1992] 2 F.C. 306 (QL), the RPD noted
that this standard of proof was not as stringent as that of the balance of
probabilities. It then examined the case law on the question of participation
in such a crime by complicity (including all the authorities cited by the
applicant during the hearing before me).
[9]
The RPD then found,
after having examined the documentary evidence before it, that the Lebanese
Forces and the SLA have in fact committed many crimes against humanity and that
such was the case during all of the lengthy period during which the applicant
worked for the Lebanese Forces. This finding was not disputed by the applicant. Moreover,
the Court noted that this Court and the Federal Court of Appeal have approved
many decisions containing similar findings with regard to these two militia. (Harb v. Canada (MCI),
2003 FCA 39, [2003] F.C.R. No. 108 (C.A.) (QL); El Hayek v. Canada (MCI),
2005 FC 835, [2005] F.C.R. No. 1045 (QL); Sleiman v. Canada (MCI), 2005
FC 285, [2005] F.C.R. No. 344 (QL); Alwan v. Canada (MCI), 2004 FC 807,
[2004] F.C.R. No. 982 (QL); El-Kachi v. Canada (MCI), 2002 FCTD 403, [2002]
F.C.R. No. 554 (QL); Srour v. Canada (Solicitor General), [1995] F.C.R.
No. 133 (QL)).
[10]
The RPD also found
that the applicant was aware of the crimes committed by the Lebanese Forces and
that in spite of this, he never tried to end his activities mainly because his
employer paid him well.
[11]
It is clear that the
RPD gave weight to the applicant’s testimony at the first hearing (see at
page 6 of the decision, at paragraph 3) while it found that during the
subsequent hearings, the applicant simply tried to minimize his collaboration
with the Lebanese Forces (at page 7, first paragraph). It also noted that the
work he supposedly did as an informant on a ferryboat was not mentioned in the
applicant’s Personal Information Form. The Court noted that in his form, the
applicant was to list his professional activities during that period and that
in this regard, he only indicated that he had worked in his aluminum plant
although according to his testimony, he really did not have any orders during
this period. Nor was his involvement with the Lebanese Forces mentioned in his
account although it was, according to his testimony, the very cause of his
problems with Hezbollah supporters.
Issues
[12]
The applicant agreed
at the hearing that the RPD applied the proper test and that it understood
correctly the applicable law to determine whether a person has committed or
participated in the commission of a crime by complicity. According to him, it
is in applying the law to the facts in this case that the RPD has erred.
[13]
It should also have
accepted his testimony to the effect that he never engaged in combat nor
participated actively in any activity linked to the crimes committed by the
Lebanese Forces or the SLA and that he had to work for the Lebanese Forces to
subsist. According to him, he had no choice if he wanted to support his
family.
[14]
Finally, according to
the applicant, considering the nature of his involvement and the evidence
before the RPD, it could not find that he had been an accomplice in the crimes
committed by the Lebanese Forces.
Analysis
[15]
The case law is well
settled: the standard applicable to judicial review of a decision of the RPD
depends on the nature of the finding being challenged. For a question of law,
the standard is that of correctness; for a question of fact and with regard to
findings on the credibility of testimony and the probative value of evidence,
it is that of patent unreasonableness which applies. Finally, for a mixed
question of fact and law, it is that of reasonableness. This approach has been
confirmed by the Supreme Court of Canada in Mugesera v. Canada (MCI),
2005 SCC 40, [2005]
2 S.C.R. 100 (QL). (see also Harb, supra).
[16]
The question as to whether there were serious reasons for
believing that the applicant was an accomplice in crimes committed by the
Lebanese Forces is a mixed question of fact and law to which I will therefore
apply the standard of reasonableness. As to whether or not in fact, the
applicant tried to minimize his collaboration with these militia, whether he
tried to dissociate himself from the Lebanese Forces and if not why, these are
questions of fact and of assessing the evidence to which the standard of patent
unreasonableness applies.
[17]
The Court has reviewed very carefully the certified file,
including the transcript of all the hearings before the RPD and it is satisfied
that the findings of fact made by the RPD and its assessment of the applicant’s
testimony contain no reviewable error. They are all supported by evidence and
are neither arbitrary, illogical, nor absurd.
[18]
As to the applicant’s complicity, after an in-depth study of the
file, the Court is also convinced that the RPD’s conclusion was reasonable.
[19]
It is appropriate to recall in this connection that in Harb,
supra, the Federal Court of Appeal has once again made clear at
paragraph 11 that:
. . . It is not the nature of the
crimes with which the appellant was charged that led to his exclusion, but that
of the crimes alleged against the organizations with which he was supposed to
be associated. Once those organizations have committed crimes against humanity
and the appellant meets the requirements for membership in the group,
knowledge, participation or complicity imposed by precedent . . ., the
exclusion applies even if the specific acts committed by the appellant himself
are not crimes against humanity as such . . .
[20]
To find that a person
shared a common intention with the author of crimes committed against humanity,
the case law has never required that this person’s activities be directly
linked to the commission of the alleged crimes or that these crimes be directly
attributable to specific acts or omissions of an applicant. Deliberate and
personal participation may be indirect and it is not required that a person be
a fighting member of a militia.
[21]
In this case, the RPD
could reasonably infer that the applicant had a common intention with the
Lebanese Forces from the following facts: knowledge of crimes committed by this
organization, his long association with it, and the fact that he did not try to
dissociate himself from it when such would not have endangered his life nor his
safety.
[22]
The fact that the
applicant denied having shared the intentions or objectives of the Lebanese
Forces and stated rather that he could not care less about them and simply
wanted to provide for his family’s needs does not suffice to deny the existence
of such a common intention (see Harb, supra, at paragraph
27).
[23]
The secret service
and the network of informants of organizations such as the Lebanese Forces are
functions as essential as financing and propaganda (see for example Diab v.
Canada (MEI), [1994] F.C.R. No. 947
(QL); Szekely v. Canada (MCI), [1999] F.C.R. No. 1983 (QL) and Zoya
v. Canada (MCI), [2000] F.C.R. No. 1884 (QL)). And as was indicated by the
Federal Court of Appeal in Bazargan v. Canada (MCI), [1996] F.C.R. No. 1209 (QL), one who puts his own hand to
the workings of an organization exposes himself to the application of the
exclusion clause in the same way as one who participates directly in the
operation.
[24]
The parties agreed at
the hearing that this matter does not raise any question of general interest.
The Court is satisfied that there is no question to be certified in this case.
JUDGMENT
THE COURT ORDERS THAT:
The
application be dismissed.
“Johanne
Gauthier”
Certified
true translation
François
Brunet, LLB, BCL
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