Date: 20010828
Docket: IMM-5770-00
Neutral citation: 2001 FCT 956
BETWEEN:
Mohamad Abdallah SOUEIDAN
Jouheina SOUEIDAN
Khadije Ibrahim SEKLAWI
Samar SOUEIDAN
Batoul SOUEIDAN
Al Hassan SOUEIDAN
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This is an application for judicial review from a decision by the Refugee Division (hereinafter "the tribunal") on October 11, 2000 that the plaintiffs are not Convention refugees.
FACTS
[2] Mohamad Abdallah Soueidan, his wife and his minor children are citizens of Lebanon. They alleged they had a well-founded fear of persecution against Lebanon for their alleged political opinions.
[3] Mr. Soueidan's wife and his minor children based their claim on that of Mr. Soueidan, who is the principal plaintiff in the case at bar ("the plaintiff").
[4] The plaintiffs indicated in their Personal Information Forms ("PIFs") that because of the location of the plaintiffs' residence in southern Lebanon tension existed between the Hezbollah supporters and the Israeli army, and they suffered thereby.
[5] On April 13, 1996 the members of the plaintiff's family were injured when shots were exchanged. They were treated at hospital.
[6] On February 9, 2000, when the plaintiff's store opened, the plaintiff received threats from three individuals. A few days later, on February 15, 2000, a customer of the business warned the plaintiff against persons who wished him ill. He suggested the plaintiff leave the country.
[7] In these circumstances, the family fled to the home of a friend living in Beirut. This friend helped the plaintiffs to get through the airport controls in the capital.
[8] The plaintiffs left Lebanon on March 4, 2000, passed through Amsterdam the same day and then went to Boston, where they stayed for eight days.
[9] The plaintiffs arrived in Canada on March 12 ,2000 and indicated their intention to claim refugee status at that time.
[10] The plaintiffs feared for their lives if they had to go back to Lebanon.
POINTS AT ISSUE
[11] 1. Did the tribunal err in assessing the plaintiffs' credibility?
2. Did the tribunal err in its determination of whether internal refuge existed for the plaintiffs in their country of origin?
ANALYSIS
1. Did the tribunal err in assessing the plaintiffs' credibility?
[12] The plaintiffs argued that the tribunal erred in finding that the lengthy delay by the plaintiffs in leaving Lebanon and their failure to claim refugee status in the U.S. undermined their credibility so far as the validity of their fear of persecution was concerned.
[13] The plaintiffs argued that the delay in leaving their country of origin, like the delay in claiming refugee status, should not be the determining factors in a claim. In the plaintiffs' submission, the tribunal should also weigh the validity of the fear of persecution, taking the objective fear into account.
[14] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal explained the circumstances justifying intervention by the Court in the findings of a tribunal with respect to a plaintiff's credibility:
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, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[15] In Razm v. M.C.I (1999), 164 F.T.R. 140 (F.T.C.D.), the Court indicated:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where [sic] the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[Footnotes omitted.]
[16] As regards the tribunal's finding that the plaintiffs' lengthy delay in leaving Lebanon and their failure to claim refugee status in the U.S. undermined their credibility, a tribunal may be justified in concluding that such a delay undermines the credibility of a claim when the circumstances warrant. However, earlier decisions indicate that the delay in making a claim is usually only one of many reasons for concluding that a claimant lacks credibility and does not generally, by itself, constitute a sufficient basis for dismissing a claim.
[17] In Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225 (F.C.A.), the Federal Court of Appeal indicated:
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 it assessing both the statements and the actions and deeds of a claimant.
[18] On the delay in leaving one's country, Nadon J. indicated in Riadinskaia v. Canada (M.C.I.), [2001] F.C.J. No. 30 (F.T.C.D.):
In my view, points b) and c) of the analysis are sufficient to dispose of this judicial review application. After carefully reviewing the evidence, including the testimony of the applicants, I am of the view that it was open to the Board to find that if the applicants had really feared for their lives, protecting their lives would have been their greatest concern. In other words, the applicants' failure to claim refugee status in Canada in the summer of 1998 and their failure to leave Russia in October 1998 justified the Board concluding as it did. That conclusion, in my view, is fatal to the applicants' judicial review application. I therefore need not address the other issues raised by the applicants.
[19] In the case at bar the tribunal's findings that the plaintiffs' credibility was undermined by the facts that only the husband left Lebanon in 1996 after their house was bombed and that he returned to Lebanon and subsequently travelled in several countries appear unreasonable to the Court.
[20] The plaintiffs alleged that their fear of persecution began after the incident on February 9, 2000, when three men came to threaten the plaintiff.
[21] In this regard, the tribunal concluded that the plaintiffs' credibility was undermined because it was not the visit of the three unknown persons which prompted the plaintiff to close the shop and leave, but the message from a customer who warned him against those individuals. Further, the tribunal noted that the plaintiffs had had the documents they needed to leave since January 25, 2000, but did not leave until a month after the incident which they feared.
[22] In my opinion, the tribunal erred in suggesting that the facts that occurred in 1996 and those in 2000 were related.
[23] In 1996, the plaintiffs were the powerless victims of a civil war. The destruction of their house by bombing could hardly be regarded as persecution directed against them personally.
[24] However, the threats received from unknown persons in February 2000, amplified by advice from a regular customer of his business, in their view represented a real threat and the resulting fear of persecution led to their decision to leave the country after a few days in the capital.
[25] The delay between the threats received on February 9, 2000 and their departure from Lebanon on March 4 was not unreasonable in the circumstances, but the conclusions drawn from this by the tribunal were patently unreasonable.
[26] Additionally, the conduct of the plaintiff, who left Lebanon in 1996 after his house was destroyed, his wife's refusal to follow him and his return to Lebanon and reconciliation with his wife are uncontradicted and completely plausible facts.
[27] Once again, the consequences drawn by the tribunal are patently unreasonable.
[28] The courts have held that the plaintiffs' failure to claim refugee status in the U.S. is a relevant factor.
[29] In Hue v. M.E.I., [1988] F.C.J. No. 283 (F.C.A.), the Federal Court of Appeal explained:
The Board rejected the Applicant's claim, according to its reasons, on the sole ground that he had not made it in 1981 when he went to Greece and boarded his ship. This, for the Board, would show that the Appellant's fear was not real and that his contention to that effect, his having waited so long before making it, was not credible.
While we do not dispute that the delay in making a claim for refugee status may be an important factor to take into consideration in trying to assess the seriousness of an applicant's contentions, we disagree completely with the Board's reasoning in the present case. It seems to us obvious that the Applicant's fear is in relation to his having to return to the Seychelles and as long as he had his sailor's papers and a ship to sail on, he did not have to seek protection.
[30] In Papsouev v. Canada (M.C.I.) (1999), 168 F.T.R. 99 (F.C.T.D.), Rouleau J. concluded:
No doubt many authorities support the position that a Board may take into account the delay in making a claim for refugee status to impugn a claimant's credibility but all of the jurisprudence cited in referring to this principle does not assist since it was not the primary reason for denying the claim. It is usually a corollary reason to what is considered to be more central for refusing a claimant.
Therefore, even if the Board found that the applicants were not credible and rejected their account of what happened to them in Russia because of their delay in making their refugee claim, it still had to consider or comment on the central question of whether or not the applicants had a well-founded fear of persecution in Russia as result of their religion; or, in Mr. Papsouev's case, as a result of being associated with Jews. In fact, the documentary evidence on the situation of Jews in Russia may tend to support the applicants' allegations that Jewish persons are at risk in Russia.
[31] In the case at bar, the plaintiffs stayed in the U.S. for eight days without claiming refugee status. The tribunal concluded that this failure to make a claim affected the plaintiffs' credibility.
[32] It seems to the Court that the tribunal's conclusion about the failure to make a claim is somewhat exaggerated when we consider that the plaintiffs only stayed for eight days in the U.S., and in light of the plaintiff's explanation that the family always intended to come to Canada because he could speak French.
[33] In the case at bar, the tribunal concluded at p. 3 of the decision:
[TRANSLATION]
The lengthy delays since the first incident in 1996; the fact that the claimants had had valid passports and visas for Canada and the U.S. since 1996, which had subsequently been renewed; the lack of haste in leaving the persecuting country; and most importantly, the absence of an application for asylum in the U.S., mean that the subjective fear, an important aspect of every claim, is tenuous. They could not give valid explanations about the return to Lebanon, possible refuge in Beirut and the absence of any claim in the U.S.
[34] The tribunal's reasons relating to events occurring after the incident of February 9, 2000 and not having to do with the failure to make a claim in the U.S. were primarily the plaintiffs' lack of haste in leaving the persecuting country, namely the fact that it took a month for the plaintiffs to leave Lebanon.
[35] In my view, the tribunal's conclusions in this regard are patently unreasonable.
2. Did the tribunal err in its determination of whether internal refuge existed for the plaintiffs in their country of origin?
[36] The plaintiffs further argued that the tribunal erred in law when it concluded that the plaintiffs gave no valid explanation about possible refuge in Beirut.
[37] The plaintiffs noted that the tribunal did not give reasons for this conclusion in its decision. Further, the plaintiff explained at the hearing that his family could not take refuge elsewhere in Lebanon as Hezbollah representatives were everywhere in Lebanese territory and consequently the plaintiffs could be the victims of Hezbollah threats or attacks by Israelis at any time.
[38] In Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (F.C.A.), the Federal Court of Appeal indicated:
I would, accordingly, restate the first proposition: the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.
[39] The plaintiffs have the burden of showing that there was no internal flight alternative to another part of Lebanon. In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589, the Federal Court of Appeal said:
In Rasaratnam, supra, this Court also addressed and settled the question of who bears the burden of proof with respect to an IFA. In Rasaratnam, it was argued unsuccessfully before this Court that the onus is not on the claimant to disprove an IFA once the claimant has shown a well-founded fear of persecution in one part of a country. Mahoney J.A. held that, since the question of whether or not there is an IFA is simply part and parcel of whether or not the claimant is a Convention refugee, the onus of proof rests on the claimant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA.
In other words, Convention refugee claimants carry the onus of establishing that they satisfy all of the components of the definition of a Convention refugee as set out in subsection 2(1) [Immigration Act, R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)] of the Act. An important component of that definition may be whether, in a particular case, there is an IFA. But it remains only a component of the final issue to be decided - namely, whether the claimant is a Convention refugee. Accordingly, I do not think it possible to conclude that, in so far as the IFA issue is concerned, the original onus carried by the refugee claimant should, somehow, be shifted to the Minister.
. . . . .
On the other hand, there is an onus on the Minister and the Board to warn the claimant if an IFA is going to be raised. A refugee claimant enjoys the benefit of the principles of natural justice in hearings before the Refugee Division. A basic and well-established component of the right to be heard includes notice of the case to be met (see, for example, Kane v. Board of Governors (University of British Colombia), [1980] 1 S.C.R. 1105, at page 1114). The purpose of this notice is, in turn, to allow a person to prepare an adequate response to that case. This right to notice of the case against the claimant is acutely important where the claimant may be called upon to provide evidence to show that no valid IFA exists in response to an allegation by the Minister. Therefore, neither the Minister nor the Refugee Division may spring the allegation of an IFA upon a complainant without notice that an IFA will be in issue at the hearing. As was explained by Mr. Justice Mahoney in Rasaratnam, supra, at pages 710-711:
[A] claimant is not to be expected to raise the question of an IFA nor is an allegation that none exists simply to be inferred from the claim itself. The question must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument.
These two very different obligations, therefore, should be carefully distinguished.
(My emphasis.)
[40] On the IFA, the tribunal indicated at p. 3 of its decision:
[TRANSLATION]
They could not give valid explanations about the return to Lebanon, possible refuge in Beirut and the absence of any claim in the U.S.
[41] In this regard, the plaintiff testified at the hearing as follows (p. 44 of hearing transcript):
[TRANSLATION]
By the chairperson (addressing claimant)
Q. What was your purpose in leaving Lebanon, sir?
A. It was to get out of Lebanon, to get away, because the threat, it shocked me, I had to flee to a more peaceful and safer area.
Q. And what did you regard as a safer place?
A. I am in a country now which is safe for me, namely Canada.
Q. But before leaving Lebanon last spring, you tried to come here?
A. In March we left to come to Canada, or it was my destination because I . . . I stopped in the . . . U.S., at the home of my . . . my brother who . . . he was not there at that time, there was his . . . his wife, who helped me and my cousin who helped me, because I . . . I did not know as . . . as my wife did not have . . . a Canadian visa, I could not come directly by air for . . . through the airport, I was obliged to cross the border.
Q. O.K. What did you fear in Lebanon, sir?
A. I feared the extremists such as Hesbola and its . . . its allies.
Q. But for the Israeli withdrawal, would you still be there?
A. If they were the Israelis . . . no, I could not stay because the Israelis were not the fear. If they had stayed . . . even the Israelis remained (inaudible), but the . . . the fear was the Hesbolas, the . . . the threat came directly from the Hesbolas. The question was not the . . . the Israelis, the bombing, it was a war. Once you hit here and once you hit there, you don't know when . . . you can be injured, I never said that one of these days I would be injured, if we were really friends of the . . . of the Israelis, why did they hit our house?
Q. Did you think of taking refuge in Beirut?
A. No, but there was no question of taking refuge in Beirut, I wanted to get away.
- Yes, that's right.
A. I wanted to get away on April 7 when they said . . . on February 7 when they told me that . . . the Mokhtar, he told me I had to find a . . . refuge further away, to get away from . . . the area, but what alerted me much more was the bombing everywhere, where the Israelis hit. They did not hit the centre of the country, they hit the . . . the north of the country, they strafed towards the border, beside . . . Syria, Bralbak (phonetic), all of that. They are everywhere . . . these people, they are a target of the Israelis.
Accordingly, there was no area that was safe for Israeli aircraft or for members of Hesbola who . . . who lived everywhere in the population and were in the authorities everywhere. I wanted to lease a house, but it was not . . . it was before the direct threat from three individuals. It was the idea . . . with my wife, it was agreed that I would lease a house in Tyre. In fact, I told someone, a broker, to find me a house, but the change and . . . and flight was after the threats.
(My emphasis.)
[42] Although the plaintiffs had the onus of establishing that there was no internal flight alternative in another part of their country, I am not persuaded that the tribunal's statement can be regarded as providing sufficient reasons.
[43] It seems to me that the tribunal should have explained in greater detail why it regarded Beirut as a reasonable internal refuge for the plaintiffs. The plaintiffs explained that Hezbollah was everywhere and that the plaintiffs would not be safe in their country, regardless of the region. The tribunal could refuse to accept their explanations, but I feel that it should have explained in greater detail why it was not accepting the plaintiffs' explanation.
[44] In Mohamed v. Canada (M.E.I.) (1993), 74 F.T.R. 180 (F.C.T.D.), Denault J. indicated:
These explanations do not appear to have been considered by the tribunal in its reasons (Owusu-Ansah v. M.E.I. (1989), 8 Imm. L.R. (2d) 106 at 113 (F.C.A.)). Clearly, a lone statement that the replies were not straightforward is not a sufficiently clear and unequivocal reason for dismissing the explanations.
[45] In A.G. v. Canada (M.C.I.), [1997] F.C.J. No. 97 (F.C.T.D.), Rouleau J. explained:
Inter alia, the Board suggested that a reasonable IFA existed outside Lima, as the applicant could find employment as a teacher. However, it did not deal with the submission that the applicant's husband could trace through the Ministry of Education. Further, despite finding state protection had been refused in the past, the Board offered no substantive reason to justify that [sic] the applicant would be safe outside Lima. In my view, these omissions amount to a failure to consider relevant facts.
[46] In the case at bar, it appears to the Court that the tribunal should have taken the plaintiffs' explanations into account and explained why it was dismissing those explanations and concluding that an IFA existed in Lebanon.
[47] Consequently, the application for judicial review is allowed and the matter is referred back to the Refugee Division to be considered by a panel of different members.
[48] No question was submitted for certification.
|
Pierre Blais Judge |
Montréal, Quebec
August 28, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
|
FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20010828 Docket: IMM-5770-00 Between: Mohamad Abdallah SOUEIDAN Jouheina SOUEIDAN Khadije Ibrahim SEKLAWI Samar SOUEIDAN Batoul SOUEIDAN Al Hassan SOUEIDAN Plaintiffs - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Defendant REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-5770-00
STYLE OF CAUSE: Mohamad Abdallah SOUEIDAN
Jouheina SOUEIDAN
Khadije Ibrahim SEKLAWI
Samar SOUEIDAN
Batoul SOUEIDAN
Al Hassan SOUEIDAN
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 1, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 28, 2001
APPEARANCES:
Jacques Beauchemin for the plaintiff
Steve Bell for the defendant
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin for the plaintiff
Jobin, Brisson & Philpot
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Montréal, Quebec