Docket: IMM-7298-10
Citation: 2011 FC 1404
Ottawa, Ontario, December 5, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ABDULWAHAB ZABEBA
MAHIR ABDULWAHAB ZABEBA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Abdulwahab Zabeba and his son Mahir arrived in Canada from Yemen in 2008.
They claimed refugee protection on the basis of political opinion.
[2]
Mr.
Zabeba had previously served as a Yemeni diplomat in Washington, DC. He claims
he was transferred to Poland because he was perceived to be an opponent
of the President of Yemen, Mr. Ali Abdullah Saleh. Mr. Zabeba refused the
transfer and believes that a charge of treason awaits him in Yemen. He and his
son fled to Canada.
[3]
A
panel of the Immigration and Refugee Board refused to afford the applicants
refugee protection. They then applied for a pre-removal risk assessment [PRRA].
In his PRRA, Mr. Zabeba claimed to fear a risk of mistreatment in Yemen both on the
basis of political opinion and because he had converted from Islam to
Christianity while in Washington. Apostasy is a crime in
Yemen.
[4]
A
PRRA officer dismissed the application. The officer found that the risk based
on political opinion was the same risk that the Board had found to be
unsupported. Regarding potential religious persecution, the officer concluded
that while apostasy is illegal in Yemen, and punishable by
death, the persons at risk are those who openly proselytize. Mr. Zabeba does
not fit that profile.
[5]
Mr.
Zabeba argues that the officer’s decision was unreasonable because he ignored
or misconstrued the evidence. He asks me to overturn the officer’s decision and
order a reassessment of his application by a different officer. I agree that
the officer overlooked important evidence and must, therefore, allow this
application for judicial review.
[6]
The
sole issue is whether the officer’s decision was unreasonable.
II. The Officer’s Decision
[7]
As
mentioned, the officer found the risk of political persecution had already been
assessed by the Board. The Board found that Mr. Zabeba was not credible, and
was not an opponent of the Yemeni Government. Rather, he made a refugee claim
in Canada instead of the United States because our health care
programs are better. In effect, Mr. Zabeba was an economic migrant. The officer
determined that there was no new evidence before him on this issue, so the
Board’s decision must stand.
[8]
On
the other hand, the alleged risk based on apostasy was new.
[9]
The
officer acknowledged that apostasy is a crime in Yemen, punishable
by death. However, the government does not actively enforce the law. The
question was whether Mr. Zabeba’s religious profile as a Christian convert
would bring him and his son within the definition of convention refugees or
persons in need of protection.
[10]
Mr.
Zabeba tendered letters from the minister of his church in Ottawa, and from a
friend in Washington. Both
letters asserted he would be in danger in Yemen. The officer
gave the letters little weight because they were vague, speculative and
self-serving. Further, they did not come from sources with first-hand
knowledge.
[11]
The
officer also found that the documentary evidence did not support the
applicants’ assertions:
• Yemen’s Constitution does not protect or
inhibit freedom of religion, though government policies imposed some
restrictions;
• There were an
estimated 3000 Christians living throughout the country, most of whom are
refugees or temporary residents;
• While there was a
decrease in respect for religious freedom by the Yemeni government in 2008, it
was mainly with respect to the Baha’i and Jewish communities;
• There was a
reported incident from June 2008 of a Christian convert being arrested for
promoting Christianity and distributing the Bible;
• Under the
government’s interpretation of Islam, conversion to another religion by a
Muslim is considered apostasy, and there were a few reports of arrests in cases
related to proselytizing or apostasy in 2008;
• A 2009 report
indicated that while there were no specific reports of monitoring, harassment
or censorship of people possessing non-Islamic religious literature by
government authorities, there was reason to believe such actions persisted; and
• Religious minorities
are not required to register with the state; however, all non-Muslims are
barred from running for Parliament, and Jews are not eligible to serve in the
military or in government positions.
[12]
The
officer also cited evidence indicating that Christians are a recognized
religious minority in Yemen, and that only those who openly
proselytize or conduct other overt religious activity are at a risk of harm or
persecution.
[13]
Against
this evidence, the officer noted that Mr. Zabeba was merely a member of his church;
he had not proselytized or expressed any intention of doing so. Therefore, he
did not fit the profile of those who would be at risk of harm from the
government, religious zealots, or others in Yemen.
[14]
Finally,
the officer also found that the allegation that Mahir was at risk as the son of
a former diplomat who had embarrassed the government was vague, speculative and
unsupported by the evidence.
III. Was the Officer’s Decision
Unreasonable?
[15]
Mr.
Zabeba submits that the officer failed to take adequate account of the fact
that conversion itself was a crime, not just proselytizing. He also maintains
that the officer failed to deal with evidence to the contrary, and did not
provide reasons for preferring some evidence over other pieces of evidence.
[16]
In
my view, the officer considered the actual risk to Mr. Zabeba as a person who
converted to Christianity. The officer explicitly considered documentary
evidence on the particular issue of apostasy in Yemen, as well as the evidence
relating to the treatment of Christians generally in that country.
[17]
Some
of the evidence the officer was alleged to have ignored was not central to the
officer’s decision; nor did it contradict it. For example, “The Islamic Law of
Apostasy” simply indicated that apostasy is punishable by death in Yemen, a fact that
the officer had already accepted. Similarly, “Apostates from Islam: No place to
call home” notes that apostates face serious penalties, such as “the annulment
of marriage, termination of citizenship, confiscation of identity papers and
the loss of further social and economic rights”. It also states that “Muslim
nations often refrain from official executions of apostates”. However, this
article was not specific to Yemen.
[18]
The
officer relied on documentary evidence that was specific to Yemen which recorded
few arrests related to apostasy in 2008. An earlier report indicated that there
were no reports of charges or prosecutions. The officer concluded that Mr.
Zabeba did not face a risk of harm in Yemen as an apostate or as a
Christian.
[19]
However,
there was other evidence in the record supporting Mr. Zabeba’s claim that was
not cited by the officer. The record includes a report of an apostate who was
imprisoned, beaten and charged with a crime in 2000. The trial was halted after
the case received international attention. In addition, the 2009 US DOS report
stated that there were credible reports “that several converts from Islam to
Christianity continued to be detained by authorities”. Another document stated
that the number of apostasy cases before the courts had steadily increased in Yemen since the
1980s.
[20]
In
my view, the officer properly identified the risk feared by Mr. Zabeba. However,
there was evidence in the record that directly contradicted the officer’s
conclusion that only Christians who proselytized were at risk. The officer had
a duty to explain why that evidence did not support Mr. Zabeba’s claim. Accordingly,
the officer’s conclusion was unreasonable considering the material before him.
IV. Conclusion and Disposition
[21]
In
my view, the officer’s conclusion was not a defensible outcome based on the
facts and the law. Therefore, it was unreasonable. I must, therefore, allow
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is allowed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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