[1] The Minister brought this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") made on October 4, 2000. In that decision the CRDD dismissed the Minister's application under subsection 69.2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") for a determination that the respondents have ceased to be Convention refugees.
THE FACTS
[2] The respondents in this proceeding are a father, Jaafar Serhan, his wife, Rajaa Nadi, and their three sons, all citizens of Lebanon. The respondents were originally determined to be Convention refugees by the CRDD on February 21, 1990. The basis of the respondents' claim was a generalized fear of the Hezbollah, as well as the father's fear of forced recruitment by the Hezbollah.
[3] In 1990, after the original hearing before the CRDD but before the respondents were landed, the respondents left Canada for Syria to visit an ailing relative. In early 1991, their Minister's permit expired and the respondents were refused admission to Canada. After subsequent unsuccessful efforts to enter Canada, the respondents went to live in Syria. Between 1992 and 1999 some of the respondents travelled to Lebanon briefly to obtain financial assistance and help from family members who lived within a short distance of the Syrian/Lebanese border.
[4] On February 26, 1999, the Minister made an application pursuant to subsection 69.2(1) of the Act to have the respondents declared to have ceased to be Convention refugees. The grounds for the application were that the respondents' reasons for their stated fear of persecution in Lebanon had ceased to exist, and that the respondents had re-availed themselves of the protection of the authorities in control of Lebanon.
THE ISSUES
[5] The Minister asserted that the CRDD erred in law in two respects in that it:
i) failed to consider whether there was a serious possibility that the respondents' were at risk of persecution; and
ii) failed to consider whether the respondents had demonstrated clear and convincing evidence of a lack of state protection.
THE DECISION OF THE CRDD
[6] The CRDD did not purport to consider the respondents' claim other than on the basis originally advanced in 1990, namely a generalized fear of the Hezbollah and the father's fear of forced recruitment by that group. The relevant portion of the reasons of the CRDD is as follows:
The panel notes in Yusuf "...that the issue of so-called ‘changed circumstances' seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination..."
The panel finds that the country conditions have not experienced changes which would render the respondents' fears of persecution to be unfounded.
Minister's Counsel presented evidence in Exhibit M-3 that forced recruitment by the Hezbollah is no longer practised as of 1996. However, the panel also reviewed more recent country documentation in Exhibit C-7 and Exhibit C-9 and finds that the situation in Lebanon today with regard to the Hezbollah is still too unstable and fragile to justify a finding that the respondents have ceased to be Convention refugees. The recent Israel pullout has given the Hezbollah forces an even stronger position in Lebanon both militarily and politically than before. The panel notes that the main respondent's fears in fleeing Lebanon were not confined to a fear of forcible recruitment by the Hezbollah but also opposition to their radical, fundamentalist Islamic orientation. The evidence is clear that the Hezbollah continues to be a significant force throughout Lebanon. The respondents were well known for their open opposition to the Hezbollah -- a very powerful and militant force in the South where the respondents are from. However, as stated above, the panel notes that the Hezbollah are a significant presence throughout the country.
[footnotes omitted]
ANALYSIS
[7] The Act in subsection 2(1) defines a Convention refugee to mean any person who:
| (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
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a) 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_:
(i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi.
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[8] Subsection 2(2) of the Act provides that:
| (2) A person ceases to be a Convention refugee when
(a) the person voluntarily reavails himself of the protection of the country of the person's nationality;
(b) the person voluntarily reacquires his nationality;
(c) the person acquires a new nationality and enjoys the protection of the country of that new nationality;
(d) the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution; or
(e) the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.
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(2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où_:
a) elle se réclame de nouveau et volontairement de la protection du pays don't elle a la nationalité;
b) elle recouvre volontairement sa nationalité;
c) elle acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) elle retourne volontairement s'établir dans le pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée;
e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister.
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[9] Subsection 69.2 (1) of the Act states:
| 69.2 (1) The Minister may make an application to the Refugee Division for a determination whether any person who was determined under this Act or the regulations to be a Convention refugee has ceased to be a Convention refugee.
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69.2 (1) Le ministre peut, par avis, demander à la section du statut de déterminer s'il y a ou non perte du statut de réfugié au sens de la Convention par une personne qui s'est vu reconnaître ce statut aux termes de la présente loi ou de ses règlements.
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[10] Therefore, on an application under subsection 69.2(1) of the Act, the CRDD must determine whether a claimant at the time of the hearing has a well-founded fear of persecution. This in turn requires consideration of whether a claimant subjectively fears persecution and, if so, whether that fear is well-founded in the objective sense. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 722, the Supreme Court of Canada noted that the "lynch-pin" of the analysis as to the existence of the fear of persecution is the state's inability to protect. The absence of state protection allows a presumption that persecution will be likely, and that an applicant's fear is well-founded in the objective sense.
[11] Put succinctly, the CRDD is obliged on an application under subsection 69.2(1) of the Act to examine the particular claim of an applicant in order to determine whether the applicant's precise claim of persecution can no longer be said to be well-founded in light of conditions at the time of the hearing. This includes consideration of the objective basis for the claim and the existence of state protection.
[12] In the present case the Minister asserts that a review of the reasons of the CRDD, together with the documentary evidence before the CRDD, reveals the following:
a) the panel's conclusion that "country conditions have not experienced changes which would render the respondents' fear of persecution to be unfounded" does not demonstrate that the CRDD considered whether the respondents still fell within the definition of Convention refugee and still held a well-founded fear of persecution;
b) the CRDD mis-characterized the Minister's evidence in that Exhibit M-3 went far beyond the issue of forced recruitment;
c) the "more recent country documentation" relied upon by the CRDD dealt only with the overall potential situation in Lebanon and did not touch upon whether these respondents faced a serious possibility of persecution in Lebanon by the Hezbollah, and the CRDD never articulated why a stronger position of the Hezbollah would put these respondents at risk;
d) given that the respondents testified that they did not fear the state of Lebanon itself, it was necessary for the CRDD to consider the issue of state protection.
[13] In response, the respondents argued that implicit in the panel's finding that country conditions had not experienced changes which would render the respondents' fear of persecution to be unfounded is that the CRDD properly considered all of the evidence before it. The respondents also submitted that the evidence of the overall political situation in Lebanon went directly to the issue of the ability of the state to provide protection.
[14] While I agree that the reasons of the CRDD could have been more expansive and particularly could have dealt in a more detailed fashion with the evidence adduced on behalf of the Minister, it is settled law that the simple failure to mention specific items in documentary evidence does not mean that the evidence was ignored. It is also settled law that the weighing of documentary evidence is within the particular expertise and jurisdiction of the CRDD.
[15] In the present case the CRDD did direct itself to the proper test, namely whether changes occurred which rendered the previously established fear of persecution to be unfounded.
[16] The recent country documentation relied upon by the CRDD included the following information:
a) the Hezbollah applied Islamic law in areas under its control;
b) the immediate effect of the Israeli withdrawal from Lebanon had been to create a power vacuum in southern Lebanon which had been filled by Shiite guerrillas of the Hezbollah;
c) Amnesty International reported that in the year 2000 the Hezbollah killed civilians and took prisoners.
[17] Given the basis of the respondents' fear of persecution, the evidence before the CRDD that the Hezbollah was aware of Mr. Serhan's prior opposition to it and as recently as in 1994 was still seeking him, the evidence that as of 1996 the government of Lebanon was unable on its own to protect a person who had a serious problem with the Hezbollah, the evidence before the CRDD that the respondents were originally from southern Lebanon, and the current evidence as to the role of the Hezbollah in Lebanon, I am unable to find that the CRDD's conclusion that the respondents' fear of persecution was not unfounded was either clearly wrong or patently unreasonable.
[18] In the result, the application for judicial review will be dismissed.
[19] Neither counsel posed a question for certification and no question is certified.
ORDER
[20] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
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