Date: 20050503
Ottawa, Ontario, Tuesday, this 3rd day of May, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ABDALLA ABDULAAL, AMAAL BASHIR EL SHWIHDI,
MOHAMED ABDULAAL, ABDURRHAMAN ABDULAAL
and LAYAL ABDULAAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the Bench and subsequently written for precision and clarification)
[1] The Applicant, Abdalla Ahmed Abdulaal, age 46 (the "Applicant"), his wife Amaal Bashir El Shwihdi, age 40, and their three minor children, Mohamed Abdulaal, age 15, Abdurrhaman Abdulaal, age 12 and Layal Abdulaal, age 6, all claim to be refugees on the ground of membership in a particular social group or family.
[2] The Applicant was a pilot for Libyan Airlines and then for United African Airlines. On December 21, 1988, Pan Am Flight 103 crashed over Lockerbie, Scotland. On December 22, 1992, Libyan Airlines Flight 1103 crashed in Tripoli near the airport there. The US blamed Libya for the first crash and Lybia blamed the US for the second. The Applicant while on a flight course to Amman, Jordan, was talking with other pilots and stated that it appeared as though the plane had broken up in the air due to an explosion, as opposed to the plane crashing. He speculated that the Libyan government had planted a bomb on the plane to make it look as if the US had retaliated for the Lockerbie incident.
[3] Shortly thereafter members of the Security Forces arrested the Applicant and detained him for a week in an internment camp and questioned him. Once released the Applicant was not allowed to fly for several years, yet he continued to receive a salary. The Applicant claims he was followed, his phone line was tapped and people began circulating asking questions about him.
[4] In 1995, he began flying again once the United Nations partially lifted the international embargo against Libya. In June 1999, the Applicant was again in Amman and talked about the 1992 plane crash and aircraft safety in Libya. He returned to Libya to find his summer house had been bulldozed and believed he was under surveillance. He began making arrangements to go to the US but in the meantime, he made several international trips to and from Libya. The Applicant was only able to secure visas for some members of his family so his wife and daughter stayed behind in Libya. He and his two sons left Tunis and arrived in the US on December 29, 1999. The Applicant's spouse and daughter came to Canada in September 2000. The Applicant and his two sons then came to Canada on October 24, 2000.
[5] On August 6, 2002, the Immigration and Refugee Board found the Applicants were not Convention refugees or persons in need of protection. The Board found the determinative issue was credibility. The Applicant made a Pre-Removal Risk Assessment ("PRRA") application which was rejected on May 12, 2004.
DECISION
[6] The Officer noted that despite the Applicant's beliefs that the Libyan government was responsible for the plane crash, he continued to be employed by the state even though he was not actually working. He was also able to carry on a successful commercial fishing and dairy production business. In a tightly controlled state like Libya, the Officer found it strange that the Applicant could be critical of the government, yet continue to make a living undisturbed. He was also able to travel in and out of Libya between 1996 and 1999 without any problems.
[7] Due to the fact that the Applicant's theory of the plane crash was one that had been publicly disseminated, the Board had already found it difficult to accept that the Libyan government would continue to seek him out ten years after the incident. The Officer now stated that the objective evidence indicates that the Libyan government is most concerned with militant and fundamentalist groups and the Applicant does not fit that profile.
[8] The Applicant makes two arguments:
(I) The PRRA officer violated the rules of procedural fairness by considering three articles that appeared post-hearing without providing the Applicant an opportunity to make a submission on same.
(ii) The decision of the hearing officer is unreasonable as she
a. only considered the 1993 incident not the 1999 incident
b. erred in finding that "the Libyan government is most concerned with militant and fundamentalist Islamic groups."
[9] Neither point in my view is sustainable. Post-hearing documentation can be considered as long as it is general (not specific to the case in issue), publicly available and neither novel nor significant. See Mancia v. Canada (Minister of Citizenship and Immigration) (C.A.), [1998] 3 F.C. 461.
[10] In this case, the three reports considered by the Officer were general and publicly available. They also balanced each other: the Amnesty International report was very critical of Libya indicating that the basic structure of repression was still there, while the two BBC reports told about the betterment of the UK/Libyan and US/ Libyan relations. Given that the core of her findings did not rest on the softening of the repressive policies of Libya but rather on the freedom of movement the Applicant enjoyed, his continued employment by the Libyan state airline and his lack of profile in Libya, these articles were not central to her decision or significant. They thus fail the test in Mancia, supra. Hence, there was no violation of procedural fairness here.
[11] With respect to the first leg of the Applicant's second contention, I note that the Officer when describing the risk clearly in paragraph 3 of her reasons stated:
The risk allegations stem from his belief that the Libyan government views him as an opponent because in 1993, and again in 1999, he expressed his views, to colleagues, that the government was responsible for the destruction of the Libya Airlines aircraft, Flight 1103 in December 1992.
[12] Thus, I cannot accede to the Applicant's contention that the 1999 incident was not considered. Given that the Applicant devoted 15 paragraphs in his PRRA statement to the 1993 event and only 2 paragraphs to the 1999 incident, it is not surprising that the PRRA Officer focused mostly on the former incident.
[13] With respect to the second leg of the Applicant's second contention, I would note two things. First, the key findings of the Officer were:
I note that the principal applicant continued to be employed by the state-owned Libya Airlines as a pilot, after and despite his statements about his beliefs about the government's culpability in the plane crash. In addition, he continued to receive a salary from Libya Airlines even when not flying due to the sanctions and embargos. Further, he was also able to establish and run apparently successful commercial fishing and dairy production businesses. In a strictly government controlled state such as Libya, it appears that the applicant, although he was critical of the government, was able to continue to make a living unhindered by the government, over a significant period of time.
...
The applicant has not demonstrated that he holds a profile as a person who is viewed as a political dissenter or opponent to the government. The evidence does not show that he would be seen as a supporter of Islamist groups, who are of particular concern to the government. There is no evidence that he has ever been charged for a political crime. Sources do corroborate his information about being under surveillance by security operatives. Surveillance, both within and outside the country, is reportedly commonly employed by Libyan security organizations, and I accept that the applicant may have been under surveillance in the past. However, even after the critical comments he made about the government's complicity in the 1992 air crash, after he was questioned and held by authorites [sic], and underwent surveillance, I note that there were some significant aspects of his and his family's life that remained constant and unaffected. The principal applicant remained employed as a pilot for the government owned Libya Airlines. His employer sent him on a training course outside the country, in Amman Jordan in 1999. He and his family operated businesses in commercial fishing and dairy production, that by his account, were successful. He also made numerous international trips, apparently unhindered, between 1996 and 1999. I note in addition that I have considered the applicants' contention that Mrs. El-Shwihdi would face risk because her passport was improperly obtained. I note that the documentary evidence indicates that there are strict exit controls for all persons leaving Libya. She underwent the inspection process when she departed Libya on the passport in question. There is insufficient credible evidence before me to suggest that she will face difficulties with Libyan officials because of the manner in which she obtained her Libyan passport.
[14] Second, the statement that "the Libyan government is most concerned with militant and fundamentalist Islamic groups" should not be read out of context. The total paragraph reads as follows:
I note that the objective documentary evidence shows that the applicant's speculations about the cause of the plane crash and the government's involvement, were not unique. There were public media reports around the same time, suggesting similar causes for the plane crash. It also appears quite reasonable that a group of pilots employed by the same Airlines involved in the crash, would speculate and theorize about it's [sic] cause, and I therefore do not disbelieve that the applicant engaged in such discussions with his colleagues. However, I find it difficult to accept, and unsupported by evidence, that the Libyan government would continue to perceive the applicant, over 10 years later, as a threat, based on these discussions in which he was involved with other people. I note that the applicant has not suggested that any of his colleagues experienced similar treatment from the authorities. I also note that there is no evidence that the applicant holds a profile as a political opponent of the government. In addition, he has not submitted that he is a supporter or member of any political or religious based organizations. The objective evidence clearly shows that the Libyan government is most concerned about militant and fundamentalist Islamic groups. Many individuals have been arrested, detained, and charged, on the basis of their membership or alleged support of Islamist groups. Considering the passage of time since the incident in question, I note that the applicant has not submitted that he has ever faced charges resulting from his alleged opposition to the government.
[15] Read in its full context, it is clear that the Board did not find, as the Applicant alleges, that Libya only "persecutes militant and fundamentalist Islamic groups", but rather that the Applicant was not a member of such militant and fundamentalist Islamic groups and thus would not be a priority for the Libyan government.
[16] Other parts of her reasoning make it clear that she has no illusions about the repressive nature of the Libyan regime but, rather, that the free and unencumbered activity and movement by the Applicant while living in Libya, suggest that there is less than a mere possibility that he will be persecuted upon return to Libya. Based on the evidence before the Officer, I cannot find anything unreasonable with that conclusion.
[17] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"Konrad von Finckenstein"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5127-04
STYLE OF CAUSE: ABDALLA ABDULAAL et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 28, 2005
REASONS FOR ORDER AND ORDER: von FINCKENSTEIN J.
DATED: May 3, 2005
APPEARANCES:
Mr. William J. Macintosh for Applicants
Mr. Benton J. Mischuk for Respondent
SOLICITORS OF RECORD:
William Macintosh Associates for Applicants
Surrey, BC
John H. Sims, Q.C. for Respondent
Deputy Attorney General of Canada