Date:
20130306
Docket:
IMM-5387-12
Citation:
2013 FC 234
Ottawa, Ontario,
March 6, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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DALAL EL KAISSI
(aka DALAL FAHED EL KAISSI),
KHEIREDDINE KADDOURA, and
CHAYMAA RIM KADDOURA,
NASIMMA KADDOURA,
FAHED KADDOURA
(aka FAHED KHEIREDDI KADDOURA),
KHALED KADDOURA
(aka KALED KHEIRRED KADDOURA),
and KAMEL KADDOURA
(aka KAMEL KHEIREDDI KADDOURA),
By their litigation guardian,
KHEIREDDINE KADDOURA
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board],
dated May 9, 2012, where the Board determined that the applicants are not
Convention refugees or persons in need of protection.
I. Background
[2]
The
adult applicants (Ms. Dalal El Kaissi and Mr. Kheireddine Kaddoura) and three
of their children (Chaymaa Rim Kaddoura, Nassima Kaddoura and Kamel Kaddoura)
are citizens of Lebanon. The adult applicants’ other two children (Fahed Kaddoura
and Khaled Kaddoura) are citizens of the United States of America (U.S.).
[3]
In
the summer of 1999, two masked men forced their way into the applicants’ summer
home in Al Hibaria, which was under Israeli military occupation. The men
claimed to be fleeing the Israelis and wanted a place to hide. Mr. Kheireddine
Kaddoura [the principal applicant, or PA] refused to allow the men to hide in
his home and threatened to contact the Israeli officer who patrolled the area
if they did not go away. The men told him that if he did not help them they
would kill him and his family and accused him of collaborating with the
Israelis. The PA believed these men were associated with Hezbollah because they
had Shia accents and were fleeing the Israelis.
[4]
In
2000, Hezbollah took control of the area around the applicants’ summer home.
The applicants went into hiding in northern Lebanon. Around that time, the PA’s
mother went to check on the summer home and found Hezbollah members occupying
it.
[5]
The
applicants decided to flee to Benin on August 11, 2000.
[6]
In
2005, the PA learned that his brother had been detained by Lebanese authorities
and questioned regarding the whereabouts of the PA. Unable to remain in Benin and afraid to return to Lebanon, the applicants went to the U.S., where they arrived on March
13, 2005. Based on advice they had allegedly received, they decided not to
claim asylum when they first arrived in the U.S., but proceeded to do so in
2008 when they faced removal proceedings.
[7]
On
September 2, 2009, the applicants came to Canada and claimed asylum at the Windsor, Ont ario port of entry.
[8]
The
applicants’ claim was initially rejected by the Board in a decision dated
February 11, 2011. Justice David G. Near of this Court granted judicial review
of this decision on the grounds that the incompetence of the applicants’ counsel
resulted in a breach of procedural fairness (El Kaissi v Canada (Minister of Citizenship and Immigration), 2011 FC 1234). He did, however, also
find that the Board’s assessment of the applicants’ delay in pursuing a U.S. claim for refugee status was reasonable, as well as the Board’s finding on the PA not
establishing subjective fear of persecution.
[9]
In
February 2012, the PA’s first cousin, with whom the PA is close, was arrested
and charged with espionage for Israel against Lebanon.
[10]
The
PA also claims a warrant for his arrest was confirmed in 2007 and that there
was still a warrant for his arrest as of March 20, 2012. The warrant, however,
is non-specific as to what the reason for the warrant was and is for the PA’s
arrest.
II. Issue
[11]
The
applicants raised the following issues:
A.
Did
the Board err in making its negative credibility finding?
B. Did
the Board err by not confronting the PA with its concern over his work history?
C. Did
the Board err in applying an incorrect standard of proof for a well-founded fear
of persecution in its section 96 analysis?
III. Standard
of review
[12]
The
Board’s credibility finding is a question of fact and is reviewable on the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paras
51 and 53 [Dunsmuir]).
[13]
The
standard of reasonableness is concerned with “the existence of justification,
transparency and intelligibility within the decision-making and whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para 47
and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59).
[14]
The
second issue, being one of procedural fairness, is reviewable on the
correctness standard (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 54).
[15]
The
third issue is a question of law and is also reviewable on the correctness
standard (Mugadza v Canada (Minister of Citizenship and Immigration),
2008 FC 122 at para 10).
IV. Analysis
A. Did the Board Err in Making
its Negative Credibility Finding?
[16]
The
Board held that it was not credible that the PA was not found while hiding in
Northern Lebanon, considering that Lebanon is a small country. It is the
applicants’ position that the documentary evidence is clear that Hezbollah was
based in the south in 2000, and therefore no adverse credibility finding was
reasonable. The applicants also submit that the confirmation of the PA’s arrest
warrant issued in 2007, a date subsequent to the incidents alleged by the
applicants in 2000, is consistent with the growth of Hezbollah’s control over
the Lebanese state subsequent to 2000 and evolving through to 2012.
[17]
I
find no evidence before the Board member that Hezbollah would have had the
capability to find the PA while in hiding in northern Lebanon in 2000. I also find a lack of any evidence to show Hezbollah had sufficient
political influence in Lebanon in 2000 to get an arrest warrant issued for the
PA and that therefore the Board erred by drawing negative inferences in respect
of each issue.
[18]
Further,
the fact that the Board relied on a non-existent “Exhibit C-4” in its
credibility analysis and on facts not even before the Board in respect of the
PA’s need for medical and dental care, as a result of alleged Hezbollah’s
beatings, reinforces an apparent unreasonableness of the Board’s findings with
respect to the PA’s overall credibility. This is not a mere clerical error.
[19]
The
Board also found that the delay in claiming asylum in the United States negatively impacted the PA’s credibility. The applicants countered that the Board
unreasonably minimized the PA’s testimony that he did not claim asylum in the
United States because he genuinely believed he would obtain permanent resident
status by way of his son sponsoring him once his son turned 18 years old,
relying on the decisions in Papsouev v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 769 at para 20 and Espinosa v Canada (Minister
of Citizenship and
Immigration),
2003 FC 1324 at para 17). The PA’s evidence is that although he did not contact
a specialist in immigration law, he had sought out information from his
“community”, “friends” and “regular people” about whether he should seek asylum
in the United States.
[20]
It
is not unreasonable for a person who has a well-founded fear or persecution to
wait for what he or she believes to be a more certain route to permanent
residency rather than filing an asylum claim. For the Board to find that it was
“not at all” in the minds of the applicants to claim asylum in the United States, based on the evidence before the Board, was unreasonable. While this Court
is not to “reweigh” the evidence before the Board, deference must be based on
reasonable findings of fact.
B. Did
the Board Err by Not Confronting the PA with its Concern Over his Work History?
[21]
The
applicants submit that the Board breached natural justice by failing to put to
them its concern regarding the PA’s work history which indicated he was working
in Saika, Lebanon until August 2000, in contradiction to his testimony that he
was hiding in northern Lebanon as of May 2000. The PA’s position is that he
could have explained this inconsistency if put to him given his
“self-employment” and the fact his business continued to operate, even if he
himself was in hiding.
[22]
I
am guided by the decision in Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558 at paras 16-17, in which this Court concluded the
Board did not have a duty to confront the applicant with an inconsistency:
16 Counsel for the
Applicant submitted that the Board breached procedural fairness by failing to
offer the Applicant an opportunity to confront the apparent significant
inconsistency in the fact that the Applicant was self-employed while he claimed
to have been living in hiding. At the hearing, counsel added that being
self-employed, the Applicant did not have to be physically present at his place
of work and could therefore be working while hiding.
17 I agree with the Respondent that the Board
had no duty to confront the Applicant with obvious discrepancies in his story.
It is not entirely clear where the Applicant was kidnapped; his father does not
mention this incident in his affidavit, and one of his friends indicated in his
affidavit that he was abducted on the highway. Yet, a natural reading of the
PIF narrative would lead one to believe the applicant was kidnapped for two
days from the family home (as the Applicant seems to suggest by saying that the
thugs "came back"). More importantly, I do not think it was
unreasonable for the Board to conclude that the Applicant cannot be said to
have been in hiding if he was able to live at the same place from mid-April to
November and if he was able to work as a trader throughout that time. Whether
he actually had to be physically present to conduct his business or not, the
fact remains that this is where he was living without ever moving for more than
six months.
[23]
I
also note the criteria set out by Justice Danièle Tremblay-Lamer in Ngongo v
Canada (Minister of Citizenship and Immigration), [1999] FCJ 1627 at para
16:
16 In my view, regard should be had in each case
to the fact situation, the applicable legislation and the nature of the
contradictions noted. The following factors may serve as guidelines:
1. Was the contradiction found after a careful
analysis of the transcript or recording of the hearing, or was it obvious?
2. Was it in answer to a direct question from the
panel?
3. Was it an actual contradiction or just a slip?
4. Was the applicant represented by counsel, in
which case counsel could have questioned him on any contradiction?
5. Was the applicant communicating through an
interpreter? Using an interpreter makes misunderstandings due to interpretation
(and thus, contradictions) more likely.
6. Is the panel's decision based on a single
contradiction or on a number of contradictions or implausibilities?
[24]
I
conclude that in this case the inconsistency was obvious and arose from a discrepancy
between the PA’s declared work history and his PIF narrative, not from a
careful analysis, and that the PA was represented by counsel. There was no
breach of natural justice.
C. Did
the Board Err in Applying an Incorrect Standard of Proof for a Well-Founded
Fear of Persecution in its Section 96 Analysis?
[25]
The
applicants submit the Member erred by requiring “clear and convincing” evidence
that the applicants are at risk at paragraph 33 of the decision:
The panel does not have sufficient evidence in a
clear and convincing fashion that the claimants’ lives would be at risk based
on being an alleged Israeli collaborator or based on the claimant’s cousin’s
recent arrest and detention by the authorities.
[26]
Moreover,
the applicants argue that in substance as well as form the Board demanded an
unreasonably high standard of proof. The applicants assert that while they cannot
know for certain that they are at risk from Hezbollah in Lebanon, a serious possibility of risk can be inferred from their allegations.
[27]
In
Adjei v Canada (Minister of Employment and Immigration), [1989] FCJ 67,
[1989] 2 FC 680 (FCA), the Federal Court of Appeal addressed the legal test or
standard of proof a refugee claimant must meet in asserting a fear of
persecution. Justice MacGuigan stated the following regarding the proper interpretation
of section 2(1)(a) of “Convention refugee” in the former Immigration Act, the
forerunner to section 96(a) of the Act:
However, the issue raised before this Court related
rather to the well-foundedness of any subjective fear, the so-called objective
element, which requires that the refugee's fear be evaluated objectively to
determine if there is a valid basis for that fear.
It was common ground that the objective test is not
so stringent as to require a probability of persecution. In other words,
although an applicant has to establish his case on a balance of probabilities,
he does not nevertheless have to prove that persecution would be more likely
than not. Indeed, in Arduengo v Minister of Employment and Immigration
(1982) 40 NR 436, at 437, Heald J.A. said:
Accordingly, it is my opinion that the board erred
in imposing on this applicant and his wife the requirement that they would be
subject to persecution since the statutory definition supra required only that
they establish "a well-founded fear of persecution". The test imposed
by the board is a higher and more stringent test than that imposed by the
statute.
[…]
We would adopt that phrasing, which appears to us to
be equivalent to that employed by Pratte J.A. in Seifu v Immigration Appeal
Board (A-277-822, dated January 12, 1983):
[I]n order to support a finding that an applicant is
a convention refugee, the evidence must not necessarily show that he "has
suffered or would suffer persecution"; what the evidence must show is that
the applicant has good grounds for fearing persecution for one of the reasons
specified in the Act.
What is evidently indicated by phrases such as
"good grounds" or "reasonable chance" is, on the one hand,
that there need not be more than a 50% chance (i.e., a probability), and on the
other hand that there must be more than a minimal possibility. We believe this
can also be expressed as a "reasonable" or even a "serious
possibility", as opposed to a mere possibility.
[28]
In
deciding whether the Board erred in applying the standard of proof for section
96 of the Act, the Board’s reasons are to be taken as a whole (IF v Canada (Minister of Citizenship and Immigration), 2005 FC 1472 at para 24 and Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4 at para 6).
[29]
Although
at paragraphs 38 and 39 of the decision the Board clearly and correctly stated
the standard of proof applicable to a claim under section 97 of the Act, the
Board did not address the correct standard with which to assess the section 96
claim.
[30]
The
Board twice alluded to the standard of proof it applied to the applicants’
section 96 claim:
The panel does not have sufficient evidence in a
clear and convincing fashion that the claimants’ lives would be at risk based on being an
alleged Israeli collaborator or based on the claimant’s cousin’s recent arrest
and detention by the authorities.
…the panel inquired whether there is any update to
their situation that would suggest in a forward looking analysis that
their lives would be at risk from Hezbollah today if required to return to Lebanon.
[Emphasis added]
[31]
The
test for the objective element of the applicants’ claim is not whether they
have suffered or would suffer persecution in Lebanon. The test is whether there
is a serious possibility or reasonable chance of persecution. The Board did not
apply the correct test for the well-foundedness of the applicants’ subjective
fear. Even taken as a whole, the Board’s reasons indicate the applicants were
put to an unduly onerous burden of proof.
[32]
The
Board therefore erred in applying an incorrect standard of proof to the
applicants’ well-founded fear of persecution in its section 96 analysis.
[33]
No
submissions were made with respect to the two applicants who are U.S. citizens, Fahed Kaddoura and Khaled Kaddoura, and given that they are U.S. citizens, I find no reason to grant the application in respect of either of them.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
- The
application for judicial review is granted with regards to the following
applicants: Ms. Dalal El Kaissi, Mr. Kheireddine Kaddoura, Chaymaa Rim
Kaddoura, Nassima Kaddoura and Kamel Kaddoura) and the matter is referred
to a different Board member for redetermination;
- The
application for judicial review for the applicants Fahed Kaddoura and
Khaled Kaddoura is dismissed;
- No
questions are certified.
"Michael D.
Manson"
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