Date:
20130123
Docket:
IMM-9210-11
Citation:
2013 FC 60
Ottawa, Ontario,
January 23, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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RIDA ABDUL SATER
(A.K.A.: RIDA ABEL SATER)
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by M. Sterlin (the
“Officer”) of the Immigration and Refugee Board, Refugee Protection Division
(the “Board” and the “RPD”, respectively), dated October 31, 2011, who rejected
the claim of Rida Abdul Sater (the “Applicant”), deeming him not to be a
convention refugee nor a person in need of protection.
[2]
The
Applicant’s claim was joined with that of his older sister, Aya Abdul Sater,
under Rule 49 of the Refugee Protection Division Rules, SOR/2002-228.
The Applicant and his sister both claimed refugee status in Canada on the grounds of a well-founded fear of persecution in Lebanon, having converted from Islam
to Christianity while living in the United States.
[3]
The
Board granted the sister’s claim, finding her to be a refugee under section 96
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), but
refused the Applicant’s claim. The RPD hearing, the Applicant’s counsel’s
arguments and the evidence produced before the Board focused heavily on the
sister’s claim. The Officer’s reasons, however, canvas the arguments raised in
support of the Applicant’s claim and conclude that it should be rejected.
[4]
Although
the evidence produced suggests plausible grounds on which the Applicant’s claim
might have been accepted, this is not sufficient for this Court to intervene.
Based on the reasons provided by the Officer and the evidence adduced by
counsel, I ultimately conclude that the impugned decision was not
unreasonable. Merely arguing that alternative inferences should or could have
been drawn is not sufficient to justify judicial review when great deference is
owed to the RPD’s decision.
1. Facts
[5]
The
Applicant was born in Lebanon on March 26, 1993, and is a Lebanese citizen.
The Applicant was raised as a Shiite Muslim and his father is a fundamentalist
Shiite Muslim.
[6]
In
2003, the Applicant came to the United States with his father and elder sister,
Aya, using a valid visitor’s visa. The Applicant was nine years old at that
time. After a period of time, the father left the Applicant and his sister Aya
(collectively, the “claimants”) with another sister, Nisreen, who is a U.S. citizen. The Applicant lived in the United States for a period of seven years, from
2003 until 2010, without status for the majority of that time (upon expiry of
his visitor’s visa). Nisreen was married to a radical Shiite Muslim in the United States during the time the claimants lived with her.
[7]
Aya
became interested in Christianity in or around September 2007 and began
attending church services and taking lessons in Christianity, bringing the
Applicant along with her. Both Aya and the Applicant officially converted to
Christianity on June 1, 2008. Nisreen’s husband disapproved of the conversion
and informed the claimants’ father, who threatened to kill Aya, as evidenced by
an undated letter (a translation of which is included at page 56 of the
Application Record).
[8]
Aya
filed an asylum claim in the United States with the financial assistance of her
church, in or about January 2009, but no such claim was submitted for the
Applicant. The claimants allege that the church could not afford to sponsor
claims for both siblings, that the Applicant could not advance a claim on his
own behalf as he had not yet reached the age of majority, and that the family
concluded that it would be futile to file a claim on behalf of the Applicant
once his sister’s claim was refused for having been filed outside of the country’s
one-year filing deadline.
[9]
In
April 2010, Aya found a Christian boyfriend, with whom she began an intimate
relationship. The father was again informed of this relationship by Nisreen’s
husband. The husband did not want the claimants to remain in his home, and they
ultimately left for Canada in October 2010, where they claimed refugee status
at the Detroit-Windsor Port of Entry based on fear resulting from their
conversion from Islam to Christianity. Nisreen and her husband ultimately
divorced.
[10]
Since
arriving in Canada, the claimants have lived with an older brother, Khalil, who
was granted refugee status in Canada after submitting a claim in October 2003.
As noted above, Aya’s claim for refugee status was granted, with the Board
accepting her claim “based on a serious possibility of an honour killing on
behalf of her father” (RPD Decision, para 9).
2. Decision
under review
[11]
In
his decision, the Officer summarized the allegations set out in the common PIF
narrative of the Applicant and his sister, analyzed Aya’s claim, and then came
to a separate determination regarding the Applicant’s claim. He notes that the
Applicant “gave little testimony, and only then at the request of the Panel”
and that “[l]ittle evidence was submitted with respect to his particular
claim.” He notes also that a friend of the family, Mr. Wahib Dandach, gave some
evidence on behalf of the male claimant. Mr. Dandach testified that the
claimants’ family could perhaps convince the Applicant to be a “weapon” against
his sister, and that he could also be seen as a spy by his family if he were to
attend church in Lebanon.
[12]
In
his reasons refusing the Applicant’s claim, the Officer considered the hardship
that the Applicant would face upon return to Lebanon, having spent most of his
life with his sisters in the United States. He accepts that the Applicant is
Christian now, but notes that this was not a straightforward determination,
given that the Applicant indicated that he had converted to Atheism, not to
Christianity, in his Port of Entry Notes. Accepting the Applicant’s argument
that he declared he had converted to Atheism because he lost his new faith for
a period of time, but now attends church regularly, the Officer found that the
Applicant is both a Christian and an apostate under Islam.
[13]
The
Officer explained that he accepted Aya’s claim because there was a serious
possibility that she would fall victim, as a female, to an honour killing, but
noted that this threat would not apply to the Applicant, both because he was
male and because no direct threat had been made against him by his family. The
Officer appeared at this point to assume that the family was aware that the
Applicant had converted to Christianity and remained a Christian. The Officer
similarly concluded that the Applicant’s fear that he would be compelled to
defend his sister was unfounded, particularly in light of the fact that the
sister’s claim was granted.
[14]
The
Officer refused various claims put forward by the family friend and examined
whether there is a serious possibility that the Applicant would be persecuted
as a Christian and a convert in Lebanon. In this regard, the Officer noted that
Christians are entitled to freedom of religion in Lebanon, that a law against
blasphemy with a maximum prison term of one year had not recently been
enforced, that it was not clear that conversion in the United States would be
considered blasphemy, and that the witness’s allegations that apostates could
be expelled from Lebanon or tracked down by their fathers should not be given
as much weight as the documentary evidence.
3. Issue
[15]
The
only issue raised in this application for judicial review is whether the
Officer erred in his determination that the Applicant would not be persecuted
in Lebanon as a Christian and a convert.
4. Analysis
[16]
There
is no debate between the parties that the applicable standard of review is that
of reasonableness. As the Supreme Court stated in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para 47, “...reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
[17]
The
most compelling argument put forward by the Applicant is that, having accepted
that he is both a Christian and an apostate under Islam, it was unreasonable
for the Officer to refuse the Applicant’s claim in spite of evidence put before
the Board demonstrating that apostates are severely punished in Muslim
countries (including the Applicant’s home country of Lebanon). The Applicant
submits that this punishment can include death and that, having accepted the
credibility of the sister’s testimony that she would be punished by her family
as an apostate, it was unreasonable to arrive at the opposite conclusion for
the Applicant.
[18]
Contrary
to the Applicant’s argument, it was reasonable for the RPD to distinguish the
Applicant’s circumstances from those of his sister. Based on the evidence
before the Board, Aya’s gender made her more vulnerable in Lebanon. The panel accepted that there was a serious possibility that the Applicant’s
sister would fall victim to an honour killing at the hands of her father.
There were documents before the panel establishing that honour killings of
women by family members do occur in Lebanon. Based on the evidence before the
RPD, the victims of this type of crime are always women. Therefore, the
Applicant would not face this problem upon return to his country of citizenship
because he is a male.
[19]
The
Applicant counters that he did not base his claim on the possibility of being a
victim of an honour crime in Lebanon, but on religious grounds. The Applicant
submits that he is in need of protection in Canada because he will suffer
persecution in Lebanon as a convert from Islam to Christianity.
[20]
As
previously mentioned, the Officer specifically examined in its reasons whether
there was a serious possibility that the Applicant would be persecuted as a
Christian and a convert upon return to Lebanon. The Officer gave three reasons
for his conclusion that the Applicant would not be persecuted in Lebanon as a Christian and a convert. He found that: (i) Christians are entitled to
freedom of religion in Lebanon; (ii) the Lebanese law against blasphemy, which
provides for a maximum prison term of one year, had not recently been enforced
at the time of the decision; and (iii) the witness’s allegations that apostates
could be expelled from Lebanon or tracked down by their fathers should not be
given as much weight as the documentary evidence to the contrary.
[21]
While
it is certainly arguable, as asserted by the Applicant, that the Officer’s
findings regarding the religious tolerance available to Christians and the
applicability of Lebanon’s blasphemy law were irrelevant to the Applicant’s
claim or could have been interpreted differently, this is not sufficient to
conclude that the Officer’s decision was unreasonable. The same is true of the
Applicant’s submission that the Board erred in concluding that the threatening
letter written by the father referred only to the sister. According to the
Applicant, the father’s letter speaks only about the sister Aya because the
family considered that she was responsible for her brother’s conversion, and
believed that if they made Aya return to Islam she would convince her brother
to follow her. Again, this is certainly one possible interpretation of the
father’s letter, but in order to show that the RPD’s inferences are
unreasonable, the Applicant must demonstrate that the inferences made by the
Board are not in any way supportable on the evidence.
[22]
While
counsel for the Applicant asserted that Sharia law is a major force in Lebanon and that it governs family situations (including, according to the documentary
evidence, questions of personal status), she did not definitively establish
that apostasy qualifies as such a situation. Thus, for example, the fact that
the Officer references Lebanon’s penal code stipulations against “blaspheming
God publicly” in the 2010 U.S. Department of State Religious Freedom Report but
does not specifically discuss the application of Sharia law to personal status
considerations cannot be considered a determinative error. The Report, in
fact, provides as follows:
In most cases the government permitted recognized
religious groups to administer their own family and personal status laws, such
as marriage, divorce, child custody and inheritance. The “Twelver” Shi’a,
Sunni, Christian, and Druze confessions have state-appointed, government
subsidized clerical courts that administered family and personal status law.
Item 12.1, the U.S. Department of State Religious
Freedom Report, at p. 3 (p. 80 of the Tribunal Record).
[23]
Neither
can it be considered an error for the Officer to ignore other references to the
dangers faced by Muslim converts (including those who convert outside their
home country) in the Islamic world generally, to the extent that the Applicant
has failed to satisfy the Officer regarding their relevance to Lebanon. At the
hearing, counsel conceded that the evidence before the Board related
exclusively to other countries, but contended that the Becaa valley where the
Applicant’s family lives is very similar to those countries. However, no
evidence was submitted in that respect.
[24]
The
Applicant similarly took issue with the RPD’s comments that although the U.S.
Department of State Religious Freedom Report indicated that there was a maximum
prison term of one year for blasphemy in Lebanon, the report also stated that
there were no persecutions under this provision during the reporting period.
The Applicant submits that those individuals who had converted to Christianity
abroad may have obtained protection elsewhere and that may be the reason for an
absence of persecution of converts in Lebanon. As noted by the Respondent,
this is pure speculation and the Applicant has failed to provide any support
for this claim. Once again, the Applicant is merely arguing that alternative
inferences should have been drawn by the RPD from the evidence before it; this
is not sufficient to justify intervention by this Court and to allow the
application for judicial review.
[25]
Although
the evidence suggests that the most common dangers faced by Muslim apostates
come from their own families and that being disowned by one’s family can have
serious consequences in Lebanon, it was open to the Officer to conclude that
the family was aware of the Applicant’s conversion, but did not intend to
subject him to the same treatment as would be faced by his sister. Similarly,
while the panel may have erred in suggesting that the Applicant, as a Christian
convert, would be entitled to the same freedom of religion guaranteed to those
born Christian in Lebanon, he clearly refused Mr. Dandach’s arguments regarding
the potential penalties for apostasy and the fact that the Applicant, as an
adult, would still be considered a possession of his father, who could thus
enlist the assistance of the police in tracking the Applicant down in Lebanon.
It is well established that the RPD is entitled to prefer the documentary
evidence over the testimonial evidence of the claimant or of any of his
witnesses: see, for ex., Zhou v Canada (Minister of Employment and Immigration),
[1994] FCJ no 1087, 49 ACWS (3d) 558 (FCA).
[26]
On
the basis of the foregoing arguments, I am therefore of the view that the
Applicant has failed to establish that the RPD’s conclusion is not supportable
in any way on the evidence. It may be, as the panel hoped, that the Applicant
should be granted permanent residence on humanitarian and compassionate
grounds. However, this Court is unable to find that the RPD erred or came to
an unreasonable conclusion in finding that the Applicant is not a Convention
refugee under s. 96 nor a person in need of protection under s. 97 of the
IRPA. As a result, this application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application
for judicial review is dismissed. No question of general importance is
certified.
"Yves de Montigny
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