Date: 20060809
Docket: IMM-6246-05
Citation: 2006 FC 955
Ottawa, Ontario, August 9, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GEORGES
ASSOUAD (a.k.a. Georges Rizkall Assouad)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
A Board is under a duty to justify its credibility findings with
specific and clear reference to the evidence, particularly when the evidence is
cogent and relevant to the Applicant's allegations: Armson v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 800 (QL). This
duty is particularly important when a claimant's credibility is affected by
implausibility findings of the Board. In Leung v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 774 (QL), the
Court stated at paragraph 15 of its reasons:
This duty becomes particularly important in cases such as this one
where the Board has based its non-credibility findings on perceived
"implausibilities" in the claimants' stories rather than on internal
inconsistencies and contradictions in their narratives or their demeanour while
testifying. Findings of implausibility are inherently subjective assessments
which are largely dependant on the individual Board member's perceptions of
what constitutes rational behaviour. The appropriateness of a particular
finding can therefore only be assessed if the Board's decision clearly
identifies all of the facts which form the basis for their conclusion.
Plausibility findings should therefore
be made only in the clearest of cases, that is, if the facts as presented are
outside the realm of what could reasonably be expected: Valtchev v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (QL).
As stated in paragraph 16 by Justice Edmond
Blanchard in Mahmood v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1526, [2005] F.C.J. No. 1883
(QL).
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board) dated
September 22, 2005, wherein it was decided that the Applicant is not a
Convention refugee nor a person in need of protection according to sections 96
and 97 of IRPA.
BACKGROUND
[3]
The
Applicant, Mr. George Assouad, is a 66 year old Christian citizen of Lebanon. He joined
the Lebanese Army voluntarily in 1959 and served until 1963. He was married in
1964 and he and his wife had six children. Mr. Assouad was a member of the
Phalange Party and worked as a guard during the civil war.
[4]
According
to Mr. Assouad, after the Israeli pullout from Southern Lebanon in May 2000,
his brother received a telephone call from his son (Mr. Assouad’s nephew)
stating that he was in Israel with other former South Lebanese Army (SLA)
members. Mr. Assouad alleges that he also spoke to his nephew, who thanked him
for sending money.
[5]
Mr.
Assouad alleges that after this telephone conversation, members of Hizbollah
abducted his brother. According to Mr. Assouad, his brother later died from
injuries incurred during his abduction.
[6]
Mr.
Assouad also alleges that he was attacked after his brother’s funeral. He was
beaten and was treated by a dentist. He was accused of being an agent of Israel and he
believed his life was in danger. He also received numerous threats, in writing
and by phone.
DECISION UNDER REVIEW
[7]
The
Board determined that Mr. Assouad does not fit any of the categories considered
at risk in Lebanon today.
Although there is evidence of several arrests of politically active persons,
Mr. Assouad has not established that he is similarly situated to these
people. Moreover, the Board was not satisfied that Hizbollah’s gain in recent elections
changed the situation for Mr. Assouad.
[8]
The
Board concluded that Mr. Assouad had not, on a balance of probabilities,
established that he is sought by Hizbollah or the Lebanese authorities. Therefore,
the Board did not believe that there is a serious possibility that Mr. Assouad
would be persecuted in Lebanon or that he would be subjected personally to a
risk to his life or to cruel and unusual treatment or punishment or to a danger
of torture.
ISSUES
[9]
According
to Mr. Assouad’s Memorandum of Argument, there are three issues in this
application:
1. Whether the
Board erred in failing to assess the evidence specific to Mr. Assouad, namely
the dental report and death certificate.
2. Whether the
Board erred in its finding that Mr. Assouad did not have the profile of someone
at risk in Lebanon and that his sons’ safety in Lebanon undermined
his objective fear.
3. Whether the
Board erred in its failure to assess Mr. Assouad’s testimony in order to
determine if his fear was well-founded.
ANALYSIS
Statutory
scheme
[10]
According
to section 96 of IRPA, a person is a refugee if they fear persecution by reason
of their race, religion, nationality, membership in a particular social group
or political opinion:
|
96. A Convention refugee is
a person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié au
sens de la Convention – le réfugié – la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
|
[11]
Subsection
97(1) of IRPA states the following:
|
97.
(1) A
person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i)
the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country;
(ii)
the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country;
(iii)
the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards; and
(iv)
the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
97.
(1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la
menace ou le risque ne résulte pas de sanctions légitimes – sauf celles
infligées au mépris des normes internationales – et inhérents à celles-ci ou
occasionnées par elles,
(iv)
la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Standard of
review
[12]
Credibility
findings by the Board are entitled to the highest degree of deference from this
Court as the Board is in the best position to assess the credibility of the
claimant. Questions of fact, such as credibility and evaluation of the
evidence, are reviewed on a standard of patent unreasonableness. (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.), [1993] F.C.J. No. 732 (QL), at paragraph 4; Umba v. Canada (Minister of
Citizenship and Immigration), 2004 FC 25, [2004] F.C.J. No. 17 (QL), at
paragraph 31; Harb v. Canada (Minister of Citizenship and Immigration),
2003 FCA 39, [2003] F.C.J. No. 108 (QL), at paragraph 14)
Failure to assess
evidence
[13]
Mr.
Assouad submits that the Board erred in ignoring evidence, in not analysing and
referring to relevant claimant-specific evidence, namely the death certificate
of Mr. Assouad’s brother and the dental report indicating his injuries at the
time Mr. Assouad claimed to have been assaulted.
[14]
As
stated in Kouassi v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1199 (QL), at
paragraphs 13-14:
In addition, the panel did not make any
reference in its reasons to the medical report filed in evidence. That report
is dated July 16, 1996, and was prepared by Dr. Pierre Dongier, who examined
the applicant here in Canada. The report corroborates the
applicant’s allegations, to a point. Dr. Dongier states that the applicant [translation] “presents physical marks,
as well as psychological symptoms, that are consistent with his description of
the violence he says was done to him”.
Although the panel did not have to
comment on all the evidence in the record, it did, in my opinion, have to
address this report and explain why it placed no weight on it. As Gibson J.
stated in Atwal v. Canada (Secretary of State):
It is trite to say that a Tribunal is not
obliged to refer in its reasons for decision to all of the evidence that was
before it. The fact that a Tribunal fails to do so does not, in ordinary
circumstances give rise to a conclusion that the Tribunal has failed to take
into account all of the evidence that is before it. But I conclude that that
principle does not apply to a failure to make reference to a case-specific
document that is evidence directly relevant to the central issue addressed in
the Tribunal’s decision.
[15]
The
following principle in Min v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1676, [2004] F.C.J. No. 2028
(QL), at paragraphs 5-9, applies here:
The Board is not obliged to refer to
every document before it. However, the more important the document, the greater
the duty on the Board to consider it expressly: Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1425 (T.D.) (QL). With respect to medical and psychological
reports, the Board must consider them if it makes credibility findings on
grounds for which that evidence is relevant: Bernadine v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 1187, [2002] F.C.J. No. 1590 (T.D.) (QL).
For example, before the Board draws an
adverse inference from a claimant’s demeanour, it must consider an expert’s
opinion that helps provide an explanation for that behaviour: Sanghera v. Canada (Minister of Employment and
Immigration),
[1994] F.C.J. No. 87 (T.D.) (QL). On the other hand, if the Board does not
believe that a psychological opinion explains the claimant’s testimony, it is
entitled to give it little or no weight: Dekunle v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1112, [2003] F.C.J. No. 1403 (QL).
The psychologist who interviewed Mr. Min
concluded that he has difficulty concentrating and had memory problems. He
sometimes has trouble understanding questions. He would “not be able to
tolerate interrogation during the hearing” because he has flashbacks and
suffers extreme stress when questioned.
The Board discounted Mr. Min’s evidence
because he gave inconsistent accounts of how he acquired his identity
documents. It considered some of his explanations to be implausible, especially
considering his level of education. Overall, it found that his evidence
“stretches the boundaries of credibility” and was “entirely without trustworthiness”.
Further, it characterized Mr. Min himself as “manipulative” and “deceitful”.
The Board clearly arrived at a very
negative assessment of Mr. Min’s evidence. However, given the content of the
psychologist’s report, the Board had a duty at least to consider whether the
factors cited in that report explained, in whole or in part, the irregularities
in Mr. Min’s evidence. In fact, the Board did not refer to the report at all,
even though the psychologist’s assessment had figured prominently in Mr. Min’s
written submissions to the Board.
[16]
The
Board made no negative credibility findings about Mr. Assouad’s brother’s death
or his own subsequent assault and so it implicitly found him to be credible
about these events which formed the basis for his claim. The evidence mentioned
above, the death certificate and dental report, thus provided independent
corroborative evidence of Mr. Assouad’s fear of Hizbollah and his objective
risk. The Board erred in failing to assess it:
The applicant maintains that the panel
ignored the medical report prepared by a Canadian doctor that corroborated her
allegations of abuse. In fact, the panel does not comment on this matter.
However, the medical report is important evidence that can affect the panel’s
evaluation of an applicant’s claim and the credibility of his or her
allegations.
In Mahanandan, the Federal Court
of Appeal indicated that when documentary evidence is presented that could
influence the way in which the panel handles the claim, the panel must indicate
its impact on the applicant’s claim.
We agree. Where, as here, documentary
evidence of the kind in issue here is received in evidence at a hearing which
could conceivably affect the Board’s appreciation of an Appellant’s claim to be
a Convention refugee, it seems to us that the Board is required to go beyond a
bare acknowledgment of its having been received and to indicate, in its
reasons, the impact, if any, that such evidence has upon the Applicant’s claim.
As I have already said, the Board failed to do so in this case. This, in our
view was a fatal omission, as a result of which the decision cannot stand.
In Soma, Mr. Justice Cullen
specified that the panel must comment on documentary evidence when it directly
contradicts the decision made.
Although it would be preferable for the
Board to address adverse documentary evidence, it is under no obligation to do
so unless the evidence is directly contradictory (to the Board’s conclusion).
In the case at bar, the evidence in
question is a letter from a doctor that, among other things, indicates the
presence of two scars: one on the applicant’s right knee and the other on the
left thigh “that the patient attributes to being beaten with a belt”. In
conclusion, he states that “the two scars are consistent with her description
of the violence she suffered”.
Of course, as the respondent’s counsel
points out, evaluation of the evidence is a matter within the panel’s
jurisdiction. However, the panel must first consider the record evidence and
comment on it when it may have a serious impact on an applicant’s claim. If the
panel decides to disregard the evidence, it must clearly state the reasons why
it placed no weight on it.
(Berete v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 359 (QL), at paragraphs 4-8)
[17]
Even
if the Board found Mr. Assouad not credible about his brother’s injury and
subsequent death as well as his own beating and his fear of Hizbollah, it had
the duty to consider the dental report corroborating the assault and his
brother’s death certificate. In failing to do so, it committed a reviewable
error:
The Board had before it two medical
reports from a municipal polyclinic in Kharkov, Ukraine that related to the alleged
post-1986 domestic abuse. The Board gave no weight to the medical document
because, in its view, the applicant had not provided credibile [sic] or
reliable evidence concerning the alleged post-1986 domestic abuse. A perusal of
the medical reports indicates that many of the notations refer to injuries consistent
with physical abuse (injuries to left part of the thorax, soft facial tissues
injury and numerous haematomas in the area of the upper extremities).
Dismissing the medical reports outright, without determining whether they
enhanced the credibility of the applicant’s testimony regarding the alleged
beatings or provided independent substantiation of harm amounting to
persecution was patently unreasonable. As held in Vijayarajah v. Canada (Minister of Citizenship and
Immigration),
[1999] F.C.J. No. 731 (T.D.) (QL), Seevaratnam v. Canada (Minister of
Citizenship and Immigration), 167 F.T.R. 130, and Baranyi v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 987 (QL), 2001
FCT 664, even if the Board considers an applicant not to be credible, it must
still consider the documentary evidence. Here, the Board erred in using its
negative credibility finding as reason to place no weight on potentially
crucial documentary evidence, given the nature of the applicant’s claim and
testimony.
(Voytik v. Canada (Minister of
Citizenship and Immigration), 2004 FC 66, [2004] F.C.J. No. 50 (QL), at
paragraph 20)
Assessment of
objective fear
[18]
The
Board erred in its finding that he did not have the profile of someone at risk
in Lebanon and that his son’s safety in Lebanon undermined
his objective fear. In its analysis of this issue, the Board took into account
irrelevant considerations.
[19]
Firstly,
Mr. Assouad is not similarly situated to former SLA members in Lebanon who are now
safe. He was never a member of this group. He fears Hizbollah as a suspected
collaborator with Israel after the SLA had disbanded in 2000. Mr.
Assouad did not ask for “forgiveness” for his contact with his nephew in Israel or his
financial assistance to him. Therefore, he is not part of the “not at risk”
group in Lebanon.
Furthermore, his sons’ affiliation with the SLA and the previous
President of Lebanon is irrelevant to his current risk.
[20]
The
Board also erred in ignoring documentary evidence about the treatment of
suspected collaborators with Israel. In Raveedran v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 49, [2003] F.C.J. No. 116 (QL), at
paragraph 54, the Federal Court has warned against using risk profiles in
assessing objective fear:
The conclusion of the panel that the
applicants did not “fit the profile” of LTTE supporters has relatively little
meaning without at least some explanation of what the “profile” is like, in the
view of the panel. In addition, the evidence suggests that Sri Lankan
authorities do not make a concerted attempt to “profile” who does or does not
support the LTTE. The documentary evidence shows that arrests have been made
against persons who are simply suspected of supporting the LTTE in any manner.
No reference in these reports is made to any profile.
[21]
A Board is under a duty to justify its
credibility findings with specific and clear reference to the evidence,
particularly when the evidence is cogent and relevant to the Applicant's
allegations: Armson v. Canada (Minister of Employment and
Immigration), [1989] F.C.J. No. 800 (QL). This duty is particularly
important when a claimant's credibility is affected by implausibility findings
of the Board. In Leung v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 774 (QL), the Court stated at paragraph 15
of its reasons:
This duty becomes particularly important in cases such as this one
where the Board has based its non-credibility findings on perceived
"implausibilities" in the claimants' stories rather than on internal
inconsistencies and contradictions in their narratives or their demeanour while
testifying. Findings of implausibility are inherently subjective assessments
which are largely dependant on the individual Board member's perceptions of
what constitutes rational behaviour. The appropriateness of a particular
finding can therefore only be assessed if the Board's decision clearly
identifies all of the facts which form the basis for their conclusion.
Plausibility findings should
therefore be made only in the clearest of cases, that is, if the facts as
presented are outside the realm of what could reasonably be expected: Valtchev
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131
(QL).
(Paragraph 16 of Mahmood, above.)
[22]
As
stated, specific and clear reference to the evidence in respect of credibility
findings must take into account that which is pertinent to the allegations of
the Applicant. Those cannot be simply set aside without, at least, some comment:
Hezbollah-Radical shi’a group formed in
Lebanon; dedicated to the creation of Iranian-style Islamic republic in Lebanon and removal of all
non-Islamic influences from the area. Strongly anti-West and anti-Israel.
Closely allied with, and often directed by, Iran …
Affidavit of Sujani Widyaratne, Exhibit
“H”, ICC Country Report, May, 2003, p.66, 1st para.
Political activist Ramzi’ Irani has not
been seen since 7 May, when he left work for his home in Central Beirut. He works on student affairs
for the unauthorized Lebanese Forces (LF), and Amnesty International fears that
he has been detained incommunicado, and may be tortured to force him to reveal
information about the LF’s activities…
The security forces rounded up hundreds
of LF members across the country including students, in August and September
2001. Most were released, but some were held incommunicado at the Ministry of
Defence detention centre, where they were reportedly tortured and ill-treated. Among
them was a leading member of the organization, Tawfq al-Hindi, who was
sentenced to three years’ imprisonment in March 2002, after an unfair trial
before the Military
Court, on
charges including “contacts” with Israel. He was the political advisor to Jailed
LF leader Samir Geagea.
Affidavit of Sunjani Widyaratne, Exhibit
“L”, Amnesty International, Urgent Action, May 10, 2002, emphasis added, p.77,
1st and 4th para.’s
On 16 April 2002, the Website Lebanon.com
reported that three anti-Syrian defendants, including Toufic Hindi, an advisor
to the banned Christian Lebanese
Forces (LF), would be retried for
their alleged contacts with the “enemy” Israel. The three had been arrested during
anti-Syrian protests in August 2001…
Affidavit of Sujani Widyaratne, Exhibit
“I”, Immigration and Refugee Board Response to Information Request, LBN 39107.
E, emphasis added, p. 69, 3rd para.
Tawfiq al-Hindi, a leading member of the
unauthorized Lebanese Forces Party (LFP), was sentenced to 15 months in prison
by the Military Court of Appeal on 11 July. At a separate trial on 10 July, the
Military Court in Beirut acquitted Nadim Latif, a leading member
of the Free Patriotic Movement (FPM), of all charges including “defamation of
the Syrian Army”.
Following an unfair trial in March, the Military Court found Tawfiq al-Hindi guilty
of “contacting” Israel and “providing the enemy with information detrimental to
Lebanon’s relations with its
neighbours”. He was allegedly tortured and ill-treated in order to make him
“confess” to the charges, which he later denied before the Military Court of
Appeals.
Amnesty International issued a public
statement expressing concern at the allegations of torture and ill-treatment of
Tawfiq al-Hindi and his co-defendants, journalists Antoine Bassil and Habib
Yunes during their pre-trial incommunicado detention…
Affidavit of Sujani Widyaratne, Exhibit
“M”, Amnesty International Urgent Action, July 15, 2002, emphasis added, p.78,
1st 3 para.’s
…The Government did not attempt to disarm
Hizballah, a terrorist organization operating in the region…
The Government and Syrian intelligence
services used informer networks and monitored telephones to gather information
on their perceived adversaries. The Army Intelligence Service monitored the
movements and activities of members of opposition groups (see Section 2.b.).
The Government conceded that security services monitored telephone calls but
claimed that monitoring occurred only with prior authorization from competent
judicial authorities…
Well-founded fear
[23]
Finally,
the Board erred in not assessing Mr. Assouad’s testimony as to whether his fear
was well-founded. As mentioned above, the Board implicitly found his evidence
credible regarding his assault, his brother’s abduction and death from injuries
inflicted by Hizbollah. Therefore, the Board had the obligation to state why
his testimony did not support his objective fear. It failed to do so and
committed a reviewable error:
Moreover, the Board based its decision on
the documentary country condition evidence, stating that “… the documentary
evidence of disinterested sources indicates that the claimants do not face a
reasonable chance or a serious possibility of persecution … because of their
ethnicity.”
In Coitinho v. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 1269, 2004 FC 1037, Justice Snider addresses this type of
reasoning, stating:
The Board goes on to make a most
disturbing finding. In the absence of stating that the Applicants’ evidence is
not credible, the Board concluded that it “gives more weight to the documentary
evidence because it comes for (sic) reputable, knowledgeable sources,
none of whom have any interest in the outcome of this particular refugee
hearing”. This statement is tantamount to stating that documentary evidence
should always be preferred to that of a refugee claimant’s because the latter
is interested in the outcome of the hearing. If permitted, such reasoning would
always defeat a claimant’s evidence. The Board’s decision in this case does not
inform the reader why the Applicants’ evidence, when supposed to be presumed
true (Adu v. Minister of Employment and Immigration), [1995] F.C.J. No.
114 (F.C.A.)), was considered suspect.
The Board made a similar error here.
Moreover, in this case the Board did not simply fail to make a finding of
non-credibility in preferring the independent documentary evidence. The
Board actually made an express finding that Mr. Ramsaywack was a credible and
trustworthy witness, and then went on to either ignore or reject his evidence
on this point in favour of the documentary evidence, without any explanation
for so doing. In such circumstances, the Board’s decision cannot stand.
(Emphasis that of the Court)
(Ramsaywack
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 781, [2005] F.C.J. No. 999 (QL),
at paragraphs 13-15)
CONCLUSION
[24]
As
it does not seem to be based on the evidence which was before the Board and
some evidence seems to have been ignored, this decision cannot stand. It should
be returned to the Board for redetermination by a differently constituted
panel.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review be allowed and the matter be remitted for redetermination
by a differently constituted panel.
“Michel M.J. Shore”
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