El-Naem v. Canada (Citizenship and Immigration), docket IMM-1723-96

                            

                                 IMM-1723-96

BETWEEN:

     FAISAL EL-NAEM

                                 Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

        

                                 Respondent

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined that the Applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act.¹ The decision of the Tribunal is dated the 30th day of April, 1996.

     The Applicant is a citizen of Syria. He was born in April, 1975. He arrived in Canada in March of 1995. The Tribunal wrote:

The main basis of the claim is the claimant's fear of persecution by reason of his being suspected of having links to the Muslim Brotherhood.

From the foregoing quotation alone, it is not clear whether the Tribunal was referring to direct links of the Applicant himself to the Brotherhood or to his links to family members who were either members of the Brotherhood or suspected of being members of the Brotherhood. In the result, I conclude that the Applicant can be said to have based his claim to Convention refugee status on an allegedly well-founded fear of persecution if required to return to Syria, on his political opinion, real or perceived, or his membership in a particular social group, namely his family.

     The evidence underlying the Applicant's claim can be briefly summarized as follows. Members of his family and of his extended family were active supporters of the Muslim Brotherhood, members and suspected members of which were subjected to brutal repression in Syria at the times relevant to the Applicant's claim. From the early 1980's until the Applicant left Syria, fifteen members of his extended family were arrested and held in detention. In 1982, a brother of the Applicant was arrested and summarily executed. In 1988, at the age of 13, the Applicant started to draw the attention of the Syrian secret police. According to the Applicant's evidence, he was detained three times in October and November of that year for periods of four days, three days and ten days respectively. During his detentions, he was interrogated and assaulted.

     In October of 1993, the Applicant and a brother were detained, in the case of the Applicant, for two and half weeks. He was interrogated, beaten and tortured. In January of 1994, together with his father, the Applicant was again detained, this time for two months during which time he was again interrogated, beaten and tortured. On release from this last detention, he went into hiding at a relative's home. He was again sought by the secret police.

     With the aid of a smuggler, the Applicant left Syria through Turkey in April of 1994 when he was nineteen. He sojourned in Greece for approximately a year. Since leaving Syria, he has learned that he has been called up for compulsory military service.

     Relying heavily on documentary evidence that was before it, the Tribunal found the Applicant's account of his periods of detention "...too implausible to be believed." It went on:

The claimant's account is not rendered plausible by the fact that he was not a member of the Muslim Brotherhood, but rather a suspected supporter. The evidence is quite clear that even suspected supporters face long-term imprisonment and/or death in Syria.

The fact that there is no evidence liking [sic] the claimant to the Muslim Brotherhood also does not render his story plausible. The Syrian judicial system is well documented as having little in the way of basic procedural safeguards and is characterized by an absence of anything resembling due process. The fact that even suspected supporters of the Muslin Brotherhood face long-term detention and/or death makes it quite clear that the Syrian authorities are not troubled by legal niceties such as "evidence".

[I have added underlining for emphasis under the words "suspected supporter". The underlining under the word "suspected" alone, appears in the original.]

     The Tribunal went on to find the fact that the Applicant sojourned in Greece for a period of approximately one year without claiming Convention refugee status in that country to be "...blatantly inconsistent with any well-founded fear of persecution...". It wrote:

In our opinion, genuine Convention refugees can be expected to seek out protection as soon as they are beyond the reach of their oppressors and it is reasonably practicable to do so. Once having obtained protection against refoulement, they are then at liberty to apply to resettle in any third country they so choose.

     The Tribunal then went on to find the Applicant's fear of persecution on the basis of his illegal departure from Syria and his failure to report for compulsory military services not to be well-founded. It determined that both of these actions of the Applicant amounted to breaches of laws of general application in Syria, the punishments for which were not so severe as to be persecutory.

     Counsel for the Applicant took no exception to the Tribunal's findings as to the Applicant's illegal departure from Syria and failure to comply with his call-up notice. However, counsel argued that the Tribunal erred in its implausibility finding by fundamentally misinterpreting or misunderstanding the basis of the Applicant's claim. Further, counsel argued that the Tribunal's conclusion flowing from the Applicant's sojourn in Greece was not reasonably open to it on the totality of the evidence.

     Counsel for the Applicant argued that the burden of the Applicant's evidence was that he was arrested, detained, interrogated, beaten, and tortured, not because he was suspected of being a member or a supporter of the Muslim Brotherhood, but rather because, as a member of a family, members of which were known or suspected to be members of the Muslim Brotherhood, he was ideally situated to provide information to the secret police about those family members and their associates.

     The following extracts from the narrative portion of the Applicant's Personal Information Form support counsel's position:

1.      I suffered persecution at the hands of the authorities in Syria due to the political activities of members of my family, who have actively supported the Muslim Brotherhood.

2.      Members of my family from my father and mother's family have been active supporters of the Muslim Brotherhood. Since the conflict in Hammha in the early 1980's, approximately 6 people on my father's side of the family and 9 people on my mother's side of the family have been held in detention. Such detention continues today.

3.      My brother Mohamad Faisal El-Naem was an active supporter of the Muslim brotherhood during the conflict in Hammha. Thus in February 1982 the secret police attended our home and arrested my brother along with other such supporters in our neighbourhood. They were then executed on street on outside our home.

.....

5.      The secret police began harassing me in 1988 when I was 13 years old. I was detained 3 times through the months of October and November. The first detention lasted 4 days, the second 3 days and the third detention lasted 10 days. During the detention the secret police assaulted me and interrogated me about the whereabouts of my brother Abdul Jabar El-Naem since his name was on the list for military service. They also interrogated me about my knowledge of my dead brother Mohamad Faisal's friends.

6.      In October 1993 I was again detained by the secret police. I was arrested at my home along with my brother Abdul Rhman El-Naem. We were placed in separate cars and beaten during the drive to the station. I was detained for 3 weeks. During my detention I was tortured and interrogated about my brother Abdul Rhman who associated with members of Muslim Brotherhood. I was released with the condition that I was not to leave Hammha until I advised the secret police. Abdul Rhman is still detained today.

...

8.      I was detained for 2 months [starting in January 1994] during which time I was taken to different authorities where I was beaten, tortured and interrogated about my family. The authorities wanted to know about the political activities of my brothers, father and various other family members....

     The Applicant's oral testimony was essentially entirely consistent with the narrative in its focus on the interest of authorities in the Applicant, not on the basis of his own membership or suspected membership in the Muslim Brotherhood, but rather on the basis of his membership in his family, members of which were known to be or suspected of being active in the Muslim Brotherhood. While, under intensive questioning by the Refugee Hearing Officer, some of the Applicant's testimony might be capable of a different interpretation, I am satisfied that the burden of the Applicant's evidence as a whole demonstrates absolutely no interest on the part of Syrian authorities in the Applicant as a member or suspected member of the Muslim Brotherhood or as having "links" to the Brotherhood other than through his membership in his family.

     In Aguebor v. Canada (Minister of Employment and Immigration),² Mr. Justice Décary wrote:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony; who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant to show that the inferences drawn by the Refugee Division could not reasonably have been drawn.

In Ismaeli v. the Minister of Citizenship and Immigration,³ Mr. Justice Cullen, by reference to the foregoing quotation from Aguebor, wrote:

In summary, it is clear that the reviewing Court should refuse to interfere with decisions which assess credibility or plausibility, provided that the decisions are properly founded on evidence, do not ignore evidence or are supported by evidence.

The onus on the applicant to refute the Board's findings is a heavy one. The applicant must be in a position to show that the conclusions reached were perverse or capricious or so unreasonable that the Court is duty-bound to set the decision aside.

     On the totality of the evidence in this matter, and relying on the words of Mr. Justice Décary in Aguebor rather than on the words of Mr. Justice Cullen in Ismaeli, I am satisfied that the inferences drawn by the Tribunal, that Syrian officials regarded the Applicant as himself having links to the Muslim Brotherhood that established him as a member, supporter or suspected supporter of that organization in his own right, "...could not reasonably have been drawn." It is on the basis of the inferences drawn by the Tribunal, that the Tribunal was led to rely on documentary evidence that was before it concerning treatment in Syria of members, supporters and suspected supporters of the Muslim Brotherhood. Having concluded that those inferences could not reasonably have been drawn on the basis of the totality of the evidence, I am satisfied that the intervention of this Court in the plausibility findings of the Tribunal in this matter is warranted.

     I turn then to the findings of the Tribunal with regard to the Applicant's sojourn for a period of approximately a year in Greece without there claiming Convention refugee status. On this aspect of its analysis, the Tribunal relied on Ilie v. Canada (Minister of Citizenship and Immigration),⁴ where Mr. Justice MacKay wrote:

Finally, in my opinion the Tribunal was entitled to consider his failure to claim refugee status in other countries while travelling from July 1992 to January 1993 in Europe, and to consider how the applicant's evidence was to be weighed in light of that. In so doing it here concluded that his travelling for six months or so without seeking refugee status negated his evidence of a fear of persecution if he were returned to Romania. That finding goes to the root of the applicant's claim. It was not necessary to set out other or more detailed reasons for not accepting that the applicant had established a well-founded fear of persecution. The Tribunal's conclusion deals directly with the foundation of the applicant's claim based on an inference expressed by the Tribunal, thus:

"Would a person with a well-founded fear of persecution sojourn for approximately half a year in various countries illegally, and at risk of being returned to Romania, the country wherein he claims to fear persecution? The panel thinks not."

I am not persuaded that in the circumstances of the case, as weighed and considered by the Tribunal, this inference or its conclusion was unreasonable.

     This reasoning and conclusion may be contrasted with that of the Federal Court of Appeal in Huerta v. Canada (Minister of Employment and Immigration)⁵ where, on the basis of a four-month delay after arrival in Canada from Mexico, during which time the claimant had direct access to family members who themselves had made refugee claims, the Convention Refugee Determination Division drew a negative inference. The Court found the negative inference drawn from the delay as to the well-foundedness of the claimant's claim, was reasonably open to the Convention Refugee Determination Division. However, the Court went on to state:

The delay in making a claim to refugee status is not a decisive factor in itself. It is however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.

Huerta was not cited by Mr. Justice MacKay in his reasons in Ilie.

     I find it unnecessary on the facts of this matter to attempt to rationalize the decisions in Huerta and Ilie. Here the Applicant, who was nineteen years of age at the time he was in Greece, explained that he had a brother in Canada who had successfully claimed refugee status and that he was therefore anxious to get to Canada. He testified that he had no money and that he stayed in Greece to accumulate sufficient money to come to Canada. He testified that he had heard that refugee protection in Greece was problematic and that he feared deportation to Syria if he exposed his illegal status and tested refugee protection there.

     The Tribunal, without reference to the Applicant's age, lack of experience and need for money if he were to be able to achieve his ultimate objective, rejected the Applicant's explanation.

     On the facts of this case, I reach an opposite conclusion from that reached by Mr. Justice MacKay. I am persuaded that, in the circumstances of this case, the conclusion of the Tribunal that an individual such as the Applicant, with an alleged well-founded fear of persecution, would not sojourn for, in this case approximately a year, in Greece, at risk of being returned to Syria, the country where he claims to fear persecution, was not reasonably open to it.

     The explanation provided by the Applicant, considering all of his circumstances, was not an unreasonable one. It is too heavy a burden to place on a young person, impecunious and on his own, in a strange land with strange customs and language, and without family support, to assume he would inevitably act in a manner that reasonable persons, secure in Canada, might regard as the only rational manner.⁶ The explanation provided to the Tribunal, I conclude, was not so irrational as to support outright rejection. The Applicant chose to weigh one risk, that of being returned to Syria by reason of his illegal presence in Greece, against another risk, that of finding himself stranded, perhaps forever, or perhaps without success on a refugee claim, with the result that he would summarily be returned to Syria before realizing his desire to get to Canada. After succeeding in his gamble, on arrival in Canada, he immediately made his Convention refugee claim.

     I conclude that the Tribunal erred in a reviewable manner in determining that the Applicant's refugee claim could not succeed by reason of inferences drawn from his sojourn in Greece.

     In the result, this application for judicial review will be allowed, the decision of the Tribunal will be set aside and the Applicant's claim to Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

     Neither counsel recommended that a question be certified. No question will be certified.

             ____________________________________

                     Judge

Ottawa, Ontario

February 17, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      (1993), 160 N.R. 315 (F.C.A)

     ³      Court File: IMM-2008-94, April 11, 1995 (F.C.T.D.)(unreported)

     ⁴      (1994), 88 F.T.R. 220 (F.C.T.D.)

     ⁵      Court File A-448-91, March 17, 1993 (unreported), (F.C.A.)

     ⁶      See Ye v. Canada (Minister of Employment and Immigration) , (unreported) Court File: A-711-90, June 24, 1992 (F.C.A.) where MacGuigan J.A.wrote:
         "We may well wonder whether this judgment does not involve the imposition of Western concepts on a subtle oriental totalitariarism... ". Here, the Tribunal may well have imposed Western concepts of appropriate action on a mind ill-adapted to such concepts.