Date: 19990329
Docket: IMM-990-98
BETWEEN:
Sawsan EL-CHEIKH YOUSSEF
Mahmoud LATIF ABU SAID
Ahmad LATIF ABU SAID
Mohamad LATIF ABU SAID
Hanadi LATIF ABU SAID
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board dated August 29, 1997, allowing the application by the Minister of Citizenship and Immigration made under subsection 69.2(1) of the Immigration Act with regard to the applicants" cessation of refugee status. The applicants are asking the Court to set aside the decision and refer the matter back for hearing and judgment in accordance with the directions the Court considers appropriate.
FACTS
[2] The applicant is a stateless person of Palestinian origin who was born in Lebanon in 1964. She married Salah Abou Said in 1978 and had four children. In 1994, following the death of a friend, the applicant"s husband became a fundamentalist and violent and aggressive toward her and the children. On several occasions, he tried to impose the rituals of the Muslim religion on them and tried to marry off his eldest daughter to a fundamentalist sheikh. The applicant took refuge at her parent"s home for a time and left the country when she learned that her husband intended to ask the Islamic religious court to force her to return to the matrimonial residence.
[3] The applicant and her children arrived in Canada on September 19, 1995 and claimed refugee status. On February 14, 1996, the applicant and her children were granted refugee status without a hearing. On April 16, 1996, the applicant made an application for permanent residence for herself and for her children. In it, she listed the name of her husband as a dependent outside Canada. The applicant submits that her husband has changed and that her children require his presence but that she does not expect to live with him again. In February 1997, the applicant was interviewed by an immigration officer with regard to her husband coming to Canada.
[4] On August 29, 1997, the Minister of Citizenship and Immigration made an application concerning cessation of refugee status under subsection 69.2(1) of the Immigration Act. In its decision dated February 12, 1998, the Convention Refugee Determination Division of the Immigration and Refugee Board allowed the Minister"s application.
SUBMISSIONS OF THE PARTIES
[5] The applicant argues that the Board allowed the Minister"s application without determining whether the changes invoked were substantial, meaningful and durable and that it was required to demand a higher degree of proof than during the refugee claim. The applicant also alleges that the Board erred in the assessment of all of the facts by basing its decision on arbitrary facts and by failing to have regard to relevant facts adduced by the applicant.
[6] In response to the applicant"s submissions, the Minister submits that the Board properly applied the legal test to the facts of the instant case. The tests in the case law concerning proof of a change in circumstances - substantial, meaningful and durable - do not apply to the applicant"s situation as she did not leave Lebanon because of the political and social situation. The change of circumstances is a question of fact which must be interpreted in light of the applicant"s personal situation which gave rise to the determination of refugee status. The Board"s assessment of the facts in the instant case is based on the evidence in the record.
ISSUES
[7] The application for judicial review raises two questions.
| 1) Did the Board err in applying the legal test with regard to a change in circumstances and the burden of proof related to an application for cessation of refugee status? |
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| 2) Did the Commission err in assessing all of the facts in the record and the change of circumstances? |
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RELEVANT SECTIONS OF THE IMMIGRATION ACT
| 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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69.3 (1) Where an application to the Refugee Division is made under section 69.2, the Refugee Division shall conduct a hearing into the application, after having notified the Minister and the person who is the subject of the application of the time and place set for the hearing, and shall afford the Minister and that person a reasonable opportunity to present evidence, cross-examine witnesses and make representations.
69.3 (1) Dans les cas visés à l'article 69.2, la section du statut procède à l'examen de la demande par une audience dont elle communique au ministre et à l'intéressé les date, heure et lieu et au cours de laquelle elle leur donne la possibilité de produire des éléments de preuve, de contre-interroger des témoins et de présenter des observations.
2(2) A person ceases to be a Convention refugee when
. . .
(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.
2(2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où_: . . .
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.
| 46.04(3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(a) more than six months has been imposed; or
b) five years or more may be imposed.
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46.04(3) Malgré les autres dispositions de la présente loi mais sous réserve des paragraphes (3.1) et (8), l'agent d'immigration accorde le droit d'établissement à l'intéressé et aux personnes à sa charge visées par la demande, s'il est convaincu qu'aucun d'entre eux n'est visé à l'un des alinéas 19(1)c.1), c.2), d), e), f), g), j), k) ou l) ou n'a été déclaré coupable d'une infraction prévue par une loi fédérale_:
a) soit pour laquelle une peine d'emprisonnement de plus de six mois a été infligée;
b) soit passible d'un emprisonnement maximal égal ou supérieur à cinq ans.
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THE TRIBUNAL"S DECISION
[8] I believe it is important to reproduce a major part of the Board"s decision in view of the particular facts of this case:
[TRANSLATION]
THE FACTS REPORTED IN THE APPLICATION BY THE MINISTER"S DELEGATE
The respondents arrived in Canada on September 20, 1995 with forged or falsified Swedish passports; they filed a Personal Information Form (PIF) on October 2, 1995, and the children based their claim on their mother"s claim.
On February 14, 1996, they were determined to be refugees without a hearing by a member of the Convention Refugee Determination Division. According to the information in the PIF, the respondent is afraid to return to Lebanon because of the actions of her "unbearable" husband.
In the application, the Minister"s delegate informed us that on April 16, 1996, Ms. EL-CHEIKH-YOUSSEF signed an application for permanent residence as a "Convention refugee" and included her husband, Mr. Salah LATIF ABU SAID, as a dependent outside Canada.
On February 5, 1997, she told an immigration officer that her husband, who drank, had changed, that her children needed him, that he had acknowledged he was wrong, and that he never beat the children.
On March 14, 1997, the immigration office received a statement in which Ms. EL-CHEIKH-YOUSSEF once again said that her husband acknowledged he was wrong and that he regretted his past actions. The statement also reads: "A wife needs her husband, just as he needs his wife to build a happy life for the children of the future. The family should be complete, with a father, a mother, children and work".
The facts set out in the respondent"s PIF, which the Board received on October 17, 1995, can be summarized as follows:
The respondent, of Palestinian nationality, was born in a refugee camp in South Lebanon. Her father purportedly forced her to marry her cousin in 1978. She described her life as "hell" and stated that her parents, despite her requests, had refused to take her back. Her PIF states:
| "The big problem was my husband who for the last year has been in a very bad psychological state which has become a grave danger for myself and for my children. Following the death of a friend, my husband"s behaviour changed: he speaks only of religion and the need to live for God. He started to hit the children to force them to fast and to go to the mosque with him. I refused and resisted his constant efforts, which led him to hit and torture me each time I tried to stop him from waking my children before dawn to take them to the mosque. . . " |
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The respondent objected to her husband"s wish to have their eldest daughter marry his friend, Sheikh Ahmad Oueiti. A friend allegedly told the principal respondent at the beginning of August 1995 that her husband wanted to go through the Islamic religious court to force her to return to him, although she had insisted on a divorce. Through an aunt, a person in a travel agency obtained passports for the respondents to enable them to come to Canada.
ANALYSIS
Two witnesses were heard: the respondent and Mr. Maurice Groulx, the immigration officer who met with her on February 5, 1997.
Counsel for the respondent admitted items 1, 2, 3 and 5 of the Minister"s application.
The respondent testified that she wanted to bring her husband [to Canada] because he had changed, that she needed him to help her with the four children, and that she thought he had learned his lesson by being away from the children for so long. According to the respondent"s parents, he no longer saw his friend the Sheikh, the person who encouraged him to follow Islam. According to her testimony, her fear, that is the actions of her husband which made her life hell and made her leave Lebanon, no longer existed. She is counting on Canadian laws to protect her.
Mr. Groulx, the person responsible for dealing with the respondent"s application for permanent residence, explained the circumstances surrounding his interview with her and the drafting of the summary he made of the interview. Through the interpreter she had chosen, the respondent told him that she wanted to bring her husband [to Canada] because his behaviour had changed. He testified that the respondent had inquired several times whether her husband would arrive shortly and that she had told him that she did not want to ask for a divorce because it would be a source of disruption for the children. Last, the respondent repeated at the hearing what she had said to the immigration officer, that her husband had changed and that he no longer saw his friend the fundamentalist, who had been the cause of his change of attitude toward her and the children.
Ever since a refugee determination was made in her favour, she has maintained the same story in both her written and verbal statements to the immigration officer and before this panel, that is that the behaviour of her husband has changed and that he had returned to being the way he was at the beginning of their marriage and that she needs him for her children. The respondent no longer fears her husband, the agent of persecution who made her flee Lebanon in 1995.
DECISION
Considering the fact that the respondent admits she no longer fears her husband, the agent of persecution who made her flee Lebanon.
Considering the fact that the reasons which led the Convention Refugee Determination Division to grant "Convention refugee" status no longer exist because the respondent is now requesting the presence of her husband and claiming that he no longer has problems with his violence.
For the previously cited reasons, the panel finds that the reasons given for obtaining refugee status no longer exist and the respondents no longer require the protection of Canada. The panel allows the application by the Minister"s delegate and declares that the respondents, Sawsan EL-CHEIKH-YOUSSEF , Mahmoud LATIF ABU SAID, Ahmad LATIF ABU SAID, Mohamad LATIF ABU SAID and Hanadi LATIF ABU SAID have ceased to be "Convention refugees", the status which was granted on February 14, 1996.
[9] It is important to note that on page 3 of the Board"s decision the Board states, in the third paragraph, "According to her testimony, her fear, that is the actions of her husband which made her life hell and made her leave Lebanon, no longer existed. She is counting on Canadian laws to protect her (emphasis added).
[10] According to counsel for the applicant, this indicates that the fear she had of her husband while in Lebanon would no longer be present only if she has the protection of Canada.
ANALYSIS
[11] The applicant alleges that the Minister did not discharge the burden of showing that there was a substantial, meaningful and durable change which warranted the cessation of refugee status in accordance with paragraph 2(2)(e) of the Immigration Act. In support of this argument, the applicant directs the Court to the book by Professor James C. Hathaway, The Law of Refugee Status, Toronto, Butterworths, 1991, pages 200 to 203, and to Barabhuiyan v. M.E.I., 92-A-998, November 30, 1993, F.C.T.D. and Boateng v. M.E.I., 92-A-6524, May 19, 1993, F.C.T.D.
[12] Professor Hathaway, in speaking of change of circumstances, states that "the change must be of substantial political significance, there must be reason to believe that the substantial political change is truly effective and that the change of circumstances must be shown to be durable".
[13] Madame Justice Tremblay-Lamer, in the case of Barabhuiyan (supra), states at pages 4 to 6, in discussing change of circumstances:
The guidelines for assessing changed circumstances have been indicated by the Federal Court of Appeal several times [Ahmed v. M.E.I. (A-89-92, July 14, 1992, not reported, F.C.A.); Cuadra v. M.E.I. (A-179-92, July 20, 1993, not reported, F.C.A.].
In Ahmed Marceau J. observed:
Similarly, the mere fact that there has been a change of government is clearly not in itself sufficient to meet the requirements of a change of circumstances which have rendered the genuine fear of a claimant unreasonable and hence without foundation . . . the mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the appellant"s fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the appellant"s claim.
In Cuadra Marceau J. referred to Ahmed in reviewing the panel"s decision:
Again, a more detailed analysis of the conflicting evidence in respect of a change in circumstances was necessary to meet the requirement that the change be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation.
In addition to these cases there is a line of authority placing the emphasis on the applicant"s particular circumstances. I refer inter alia to Bhuiyan and Boateng [Bhuiyan v. M.E.I., 92-A-6737, September 13, 1993, not reported, F.C.T.D.; Boateng v. M.E.I., (92-A-6524, May 19, 1993, not reported, F.C.T.D.].
In Bhuiyan, MacKay J. concluded:
In relation to changes in country circumstances, there is no requirement to establish that change is either "effective" or "durable", or even "substantial". The only requirement is that there be evidence of change. The tribunal"s task is to reach a conclusion relating to the future that a change has occurred and that by reason of that change the particular applicant"s claim of persecution can no longer be said to be well-founded for, in light of conditions at the time of the hearing, there is no objective basis for concluding that there is a reasonable chance of persecution of the claimant. Such a conclusion must be based on the tribunal"s sense of the balance of probabilities in light of the evidence it finds credible and trustworthy.
I do not feel that one line of authority excludes the other. There is in the determination of changed circumstances an objective standard which considers the social and political policy of the country in question based on documentary evidence in the record on the day of the hearing. The change must be fundamental and durable enough to eliminate any doubt of a possible risk of persecution. However, in my opinion it should then be looked at in light of the applicant"s experience so that in his particular case and in light of the basis of his claim there is no longer any question of possible risk.
[14] In looking at what both Professor Hathaway states and at what Madame Justice Tremblay-Lamer states, it is apparent that they and the persons that they quote for the above stated test refer to a political or social change in one"s country.
[15] I am satisfied that the above "test", as stated by Professor Hathaway and Madame Justice Tremblay-Lamer, is not applicable to the facts of this case, in that the applicant did not base her refugee claim on the political or social circumstances in Lebanon and on how these political or social circumstances affected her.
[16] In the case at bar, the reasons which warranted the granting of refugee status and the changes on which the application for cessation were based are not related to the political or social situation in Lebanon. The initial claim and the Minister"s application for cessation refer to personal circumstances related to the behaviour and religious convictions of the applicant"s husband.
[17] It appears from the applicant"s Personal Information Form that the determination of refugee status was based on the fear of violence and torture after her husband embraced fundamentalist religious convictions. She said she was afraid her husband would force their eldest daughter to marry a fundamentalist sheikh and go through the Islamic religious court to force the applicant to return to the matrimonial home. The Minister"s application in the case at bar is based on information obtained from the applicant during a meeting with an immigration officer on February 5, 1997, concerning her application for permanent residence. The applicant allegedly stated that she wished to bring her husband to Canada because his behaviour had changed since he no longer saw his fundamentalist friend, that he regretted his behaviour and that his children needed his presence. The applicant purportedly said that she no longer feared her husband for these reasons.
[18] With the facts of the present case, was the Board required to determine whether the changes invoked were substantial, meaningful and durable? A person"s religious convictions and regrets, those of the persecutor of the applicant in the case at bar, are difficult to measure in terms of durability, effectiveness or importance. In my view, it would be totally unreasonable to try to determine whether a person"s religious convictions or regrets had changed to such a point that one could conclude that it was a substantial, meaningful and durable change. The Board did not err in not applying the legal test to the applicant"s situation, except to say that if the individual, the applicant, believes that her husband has changed so as to not be concerned for his actions, then, I am satisfied, the Board could conclude as to a permanent, durable and lasting change.
[19] I am further satisfied that the Board, on hearing what the applicant had to say, that is, that her husband has changed to the extent that she no longer appears to be concerned for her husband"s actions, even if the test of durability, effectiveness and importance were applicable, which it is not, was correct in its decision.
[20] Furthermore, the issue of a "change of circumstance" is one of a question of fact. In the case of Yusuf v. M.E.I. , A-130-92, January 9, 1995 (not reported) F.C.A., Mr. Justice Hugessen, at page 2, states:
We would add 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 one 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 and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: does the claimant now have a well founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene.
[21] Therefore, whether the situation is a political change of circumstances in one"s country of origin or simply a change in the personal circumstances of an individual for which that individual claimed refugee status, as it is a question of fact, the Board could conclude, on the evidence before it that the "original" fear the applicant had no longer exists.
[22] When an application is made pursuant to subsection 69.2(1) of the Immigration Act for a determination of cessation of refugee status, the burden to show that there is a cessation of refugee status rests on the Minister. That is, the evidence that must be brought before the Board, by the Minister, in a subsection 69.2(1) application, to "satisfy its burden of proof" is not always the same. It depends on the particular circumstances.
[23] I am satisfied that in a case such as the one at bar, the Minister does not have the burden to show that the husband of the applicant has changed and that the change is a durable change. The Minister must show a change has taken place and that it is a significant change.
[24] I do not intend to review in this decision the evidence that was before the Board as to the change of circumstances. I am satisfied, after reading the documents in the file, the original PIF which gives the reasons for having claimed refugee status (see pages 21 to 25 of the panel"s decision), the decision of the Immigration and Refugee Board dated February 15, 1996 wherein [TRANSLATION] "the claims were resolved without a hearing" and [TRANSLATION] "the plaintiffs are Convention refugees" (page 123 of the panel"s file), the application for Permanent Residency (pages 124 to 135) wherein the applicant, on page 125 lists her husband as the dependent outside Canada, as well as the notes made by a representative of the Minister after an interview with the applicant (pages 123 to 129), as well as the applicant"s statement (pages 134 and 135) wherein she clearly states she no longer fears her husband for the reasons she gives, that the Board was correct in concluding as it did.
[25] I have also read the transcript of the hearing.
[26] I am satisfied that, based on the statements made by the applicant as found in the above documents on how her husband has changed and, I am satisfied, as was the Board, that she wants to live with her husband as her children need a father, that the Board"s decision cannot be considered unreasonable.
[27] I find it incredible that the applicant would want to bring to Canada, whether to live with her or not, the very person from whom she allegedly escaped and for which reason she claimed refugee status. This fact can only be understandable if it is shown that the applicant is no longer concerned of being with her husband and that she is of the belief that her husband would be a good father to his and her children.
[28] Section 2(2)(e) states, as I have said, that a person ceases to be a Convention refugee when the reasons for the person"s fear of persecution in the country that the person left cease to exist.
[29] It is obvious from the applicant"s statements to Mr. Maurice Groulx, an immigration officer, on February 5, 1997 and from her request, in writing, to bring her husband to Canada and from her testimony that her husband has changed and will be a good father, that pursuant to section 2(2)(e ) of the Act, no reasons continue to exist to believe the applicant a refugee.
[30] It cannot be said the Board"s decision is unreasonable nor that it did not apply the proper "test" in dealing with the issue of "change of circumstances" in the facts of this case.
[31] It is impossible for the Board to determine how "durable" the "change of circumstances" is in a case such as the one at bar. It is sufficient that the Board be satisfied that the "change of circumstances" is significant and effective.
[32] The evidence in this case clearly is that the change is both significant and effective.
[33] The judicial review is denied.
J.F.C.C.
Ottawa, Ontario
March 29, 1999
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