Docket: IMM-1769-14
Citation:
2014 FC 939
Vancouver, British Columbia, October 2, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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HUSSEIN ZAYTOUN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Hussein Zaytoun sought refugee protection in Canada based upon his fear that members of Hezbollah would punish him for having rejected
their attempts to recruit him into the organization’s military wing. The Refugee
Protection Division of the Immigration and Refugee Board rejected Mr. Zaytoun’s
claim, finding that he had a viable internal flight alternative within Lebanon, in a majority-Christian area of the country.
[2]
I have concluded that the Board’s decision was unreasonable.
Consequently, the application for judicial review will be granted.
I.
Background
[3]
Mr. Zaytoun is a 27-year-old Shiite Muslim
from Beirut. He says that he was approached by Hezbollah representatives on
three occasions in 2013, and that they told him that it was his duty as a Shi’a
to fight in support of the Syrian regime.
[4]
Mr. Zaytoun’s father had been abducted and
tortured by Hezbollah in Lebanon in 2007. He then fled to Canada and was subsequently granted refugee protection by this country. Mr. Zaytoun
says that he was told that he would be killed if he did not comply with
Hezbollah’s demands, and that he would not be able to escape the reaches of
Hezbollah, as his father had done.
[5]
After his third confrontation with Hezbollah
members, Mr. Zaytoun fled his home in the southern part of Beirut. He went into hiding at a friend’s home in Faraya, a mainly Christian neighbourhood
northeast of Beirut. Mr. Zaytoun says that he remained in hiding in Faraya
for several weeks while he arranged to leave Lebanon and join his family in Canada.
[6]
The Board did not make any explicit negative
credibility findings regarding Mr. Zaytoun’s story. Nor did it make any
positive credibility findings. While the Board stated that it had not “made a determination that the claimant’s evidence is credible”,
it also stated that its IFA determination was “based on
the allegations and testimony of the claimant without assessing his
credibility.”
[7]
The Refugee Protection Division is required to
make negative credibility findings in clear and unmistakeable terms: Hilo v. Canada (Minister of Employment and Immigration (1991), 130 N.R. 236,
15 Imm. L.R. (2d) 199 (F.C.A.). In this case, the Board appears to have
had doubts about Mr. Zaytoun’s credibility. For example, it found that
given his age and level of education, Mr. Zaytoun did not have the
profile of someone Hezbollah would seek to recruit. To quote the Federal Court
of Appeal in Hilo, this statement “does not amount
to an outright rejection of the appellant’s evidence but it appears to cast a
nebulous cloud over its reliability”: above at para. 6.
[8]
The Board cannot have it both ways: Hezbollah
either tried to recruit Mr. Zaytoun or it did not. Mr. Zaytoun
testified under oath that Hezbollah had indeed tried to recruit him on three
separate occasions. If the Board did not accept Mr. Zaytoun’s testimony on
this point, it was required to say so clearly, and to provide a proper
credibility analysis justifying its findings. In the absence of any analysis
regarding Mr. Zaytoun’s credibility, his story must be taken as true. The
Board cannot purport to accept Mr. Zaytoun’s testimony that he was
recruited by Hezbollah, and then base its internal flight alternative finding
in part on the fact that Mr. Zaytoun lacked the profile of someone
Hezbollah would seek to recruit.
II.
The Board’s Internal Flight Alternative Analysis
[9]
As noted, the Board’s decision ultimately turned
on whether there was a viable internal flight alternative for Mr. Zaytoun
within Lebanon.
[10]
Determining whether an IFA exists for a refugee
claimant in his or her country of origin involves questions of fact and mixed
fact and law, with the result that reasonableness is the standard of review in
relation to this aspect of the Board’s decision: Lopez Martinez v. Canada
(Citizenship and Immigration), 2010 FC 550 at para 14, [2010] F.C.J. No.
709; Pedraza Corona v. Canada (Citizenship and Immigration), 2010 FC 508
at para 5, [2010] F.C.J. No. 636.
[11]
An individual seeking refugee protection bears
the burden of establishing, on a balance of probabilities, that there is a
serious possibility of persecution throughout the country in issue, including
the area which is alleged to afford an IFA: see Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.), 140
N.R. 138; Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589, at para. 5, 109 D.L.R. (4th) 682.
[12]
There are two elements to the IFA analysis: the
Board must first be satisfied on a balance of probabilities that there is no
serious possibility of the applicant being persecuted in the proposed IFA; and,
second, that the conditions in the proposed IFA are such that it would not be objectively
unreasonable for the applicant to seek refuge there: Thirunavukkarasu,
above at paras. 2 and 12.
[13]
In concluding that Mr. Zaytoun had an IFA
available to him in Faraya, the Board noted that Mr. Zaytoun was
comfortable around Christians, and that he had lived safely in Faraya for several
weeks. There are two problems with these findings. The first is, as counsel for
Mr. Zaytoun observed at the hearing, the fact that Mr. Zaytoun may
have been comfortable around Christians does not mean that Christians in Faraya
would necessarily be comfortable around Mr. Zaytoun.
[14]
There was considerable evidence before the Board
regarding the level of sectarian strife within Lebanon and the reach of
Hezbollah in Christian areas of the country. For example, a Board Response
to Information Request confirmed that “much of Lebanon’s Christian community supports the Hezbollah party.” While the Board is
presumed to have considered all of the evidence before it, this was highly
probative evidence that directly called into question the finding that Mr. Zaytoun
had a viable IFA in the Christian community of Faraya. As such, the Board should have explicitly considered it, and its
failure to do so leads to the inference that this evidence has been overlooked:
Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998),
157 F.T.R. 35, at paras. 14-17, [1998] F.C.J. No. 1425.
[15]
Whether or not Hezbollah has been looking for Mr. Zaytoun,
if his story is true - and we must accept that it is in the absence of any
negative credibility findings by the Board - it is reasonable to conclude that,
having rebuffed its recruitment attempts, Mr. Zaytoun could well be in
danger if he were to come to Hezbollah’s attention in the future. As Mr. Zaytoun
testified, Lebanon is a small country, one where it is difficult to remain
anonymous. The Board accepted that Mr. Zaytoun’s name would make him
readily identifiable as a Shi’a, and he would certainly stand out were he to
move into a Christian area and live openly in that community.
[16]
This takes us to the second problem with the
Board’s analysis. The fact that Mr. Zaytoun may have been able to live
safely in Faraya for several weeks prior to his departure for Canada does not mean that Faraya would be a viable IFA for Mr. Zaytoun in the future. Mr. Zaytoun
testified that he was living in hiding during much of his time in
Faraya, and the Board did not question the credibility of this assertion.
The Federal Court of Appeal was clear in Thirunavukkarasu that a refugee
claimant cannot be expected to live in hiding in order to remain safe in an IFA
location: above at para. 14.
III.
Conclusion
[17]
I am thus satisfied that the Board’s finding
that Mr. Zaytoun had a viable IFA in Faraya was unreasonable, and the
application for judicial review is allowed.
IV.
Certification
[18]
Mr. Zaytoun proposes the following question
for certification:
Whether the analysis of an internal flight
alternative should be done only where a claimant’s credibility has been
determined?
[19]
It may well be possible for the Board to make a
reasonable finding as to the availability of an IFA in a particular case,
assuming, without deciding that a claimant’s story is true. The problem
here is that the Board made veiled findings regarding Mr. Zaytoun’s
credibility that affected its IFA analysis, without ever conducting a proper
credibility analysis. The Board then compounded its error by ignoring highly
probative evidence in finding that Mr. Zaytoun could live safely in
Faraya. Given the basis for my decision, I am not persuaded that the question
proposed by Mr. Zaytoun is an appropriate question for certification in this
case.
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