Date: 19980108
Docket: IMM-652-97
BETWEEN:
SUHAD MOHAMED KADHM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON, J.:
[1] This is an application for judicial review pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated January 14, 1997, which found the applicant not to be a Convention refugee.
[2] The applicant is a citizen of Iraq. She and her husband are members of the Shi'a sect of Islam. The applicant claims to have a well-founded fear of persecution on the basis of her husband's desertion of the army. Before the CRDD, the applicant
also advanced the claim that she is unable to obtain employment in Iraq due to her refusal to join the Ba'ath party.
[3] The following facts are taken from the applicant's affidavit (Applicant's Record (AR), page 15 to 16). In 1995, the applicant married and moved to Babylon from Baghdad. In January or February of that year, her husband was drafted into the military. The applicant last saw her husband in August 1995, when her husband was on leave. She has not seen him since that time. Shortly after August 1995, the applicant was regularly questioned by a representative of the Ba'ath party as to the whereabouts of her husband. During the second visit, she was informed that her husband had deserted the army when he was sent to quell a Shi'ite uprising in the south. He had allegedly joined the opposition. She states that over a period of six months, she was questioned approximately eight to ten times. On each occasion she was threatened with imprisonment and informed that if she did not provide them with information she would be severely punished.
[4] The applicant later received a letter from her husband telling her to go to Baghdad. In her personal information form (PIF) the applicant baldly asserted that several months after his desertion "my husband sent a message to me that....". She did not say whether that message, which she later destroyed was signed by him, or not. In her testimony before the CRDD on October 11, 1996, the applicant swore that the
message, or letter, was signed: (Tribunal record, p. 242) "My husband did put down his name.". In her affidavit sworn on March 18, 1997 (AR, p. 016) the applicant swears that it was "an unsigned letter from my husband" (paragraph 11). Strange. By "putting down" his name, perhaps, he did not "sign" his name.
[5] The applicant expressed no doubt that the message came from her husband. At first only her Ba'athist interrogators told her that her husband had joined the opposition to the Saddam Hussein régime. This could have been an interrogator's ploy. (Tribunal record, p. 245) Finally, her husband confirmed that he joined the opposition, in his letter: (Tribunal record, p. 247). So, since the CRDD never impugned the applicant's credibility, they know clearly that her husband was a Shi'ite deserter who had joined the opposition - just as the Ba'athist interrogators had said all along. Why then did the CRDD persist in regarding the husband as an ordinary garden-variety apolitical deserter? Why call for corroborating documentation? The CRDD had it already before them.
[6] She informed the authorities of her move to Baghdad because she had signed an undertaking that she would inform them of her intentions to leave Babylon. The applicant stayed in Baghdad for two months during which time she was questioned three times during the first month and weekly for the second month. The applicant states that she became nervous in the face of this pressure. She feared that she would
be taken and held in order to force her husband to come out of hiding, a well-known barbaric technique. After two months, the applicant left Iraq travelling to Turkey and Poland before coming to Canada.
[7] Based on the applicant's testimony, the CRDD made two determinations: first, that the actions complained of did not amount to persecution but were harassing in nature; and, second, even if the actions amounted to persecution they are not linked to any of the Convention grounds.
[8] On this first issue, the CRDD wrote at pages 11 to 12 AR:
| The claimant, as noted above, described the questioning as "harassing". In our opinion, this is precisely what it is: harassment and not serious harm to fundamental human rights normally equated to persecution. Were the claimant to return to Iraq, she may very well face further questioning as to her husband's whereabouts, but this does not mean that she faced a serous possibility of persecution. Indeed, we would expect the authorities in every country, including Canada, to question the wife of a deserter as to his whereabouts. |
| The claimant testified that she would face severe punishment were she to withhold evidence from the Iraqi authorities. However, she never did... |
| Were there to be a serious possibility of the Iraqi authorities persecuting the claimant because of her husband's desertion, they certainly had ample time and opportunity to do so. They did not, and merely questioned her without mistreating her approximately ten times over a half year period. This evidence does not lead to a finding that the claimant faces a serious possibility of persecution. |
| .... |
| We do note that the documentary evidence indicates that deserters themselves in Iraq face severe punishments such as amputations, brandings and execution. The report in question is silent, however, as to any mistreatment of wives of deserters. The same is true for other reports before us dealing with the situation of deserters in Iraq. |
| Were wives of deserters in Iraq to be subjected to persecutory treatment to such an extent and on such a scale that would justify a finding that the claimant before us faces a serious possibility of persecution upon a return to Iraq, we would expect there to be some mention of same in the documentary evidence before us. That there is none confirms our finding that the claimant does not face a serious possibility of persecution because of the desertion of her husband. |
[9] After reviewing the documentary evidence, the CRDD stated at p. 012 AR:
| These documents may indicate persecution of family members of government opponents, but they do not specifically refer to family members of deserters. Are all deserters automatically assumed by the Iraqi government to be political opponents? |
| In her submissions, counsel pointed to evidence that indicates that deserters from Iraqi military are sought out and are subject to severe punishments. This evidence does not, however, lead to a finding that all military deserters are considered to be political opponents. Certainly political opposition may prompt a desertion, but so too can a myriad of other causes, such as cowardice. |
| Counsel apparently wishes us to make the inferential leap that all military deserters are considered to be political opponents and that their family members face a serious possibility of persecution in Iraq as a result thereof. This is something we cannot do, in the absence of any documentary evidence indicating that family members of deserters are being persecuted in Iraq, and in view of the claimant's own evidence that all that ever happened to her was to be questioned on occasion and not mistreated. |
[10] Based on these reasons, the applicant raises the following issues in this application for judicial review:
| 1. Whether the CRDD ignored the applicant's evidence that her husband was believed by the authorities to have deserted the army and gone over to the opposition. |
| 2. Whether the CRDD erred in law by misapprehending the documentary evidence on the mistreatment of family members of government opponents. |
| 3. Whether the CRDD erred in law in characterizing the treatment of the applicant as harassment rather than persecution. |
[11] First, the issue of the characterization of the actions of the authorities towards the applicant. The applicant submits that the treatment received by the applicant does not have to be accompanied by physical violence in order to amount to persecution. The CRDD characterized the questioning of the applicant as harassment rather than persecution. In Sagharichi v. Canada (Minster of Employment and Immigration),
A-169-91, (August 5, 1993) (F.C.A.), the Appeal Division of this Court established that on judicial review, the Court is only to review these findings if they are patently unreasonable. So they were, because the CRDD, despite clear evidence, refused to recognize that the applicant's husband was not just a deserter, but a Shi'ite opponent who deserted.
[12] It is worth recalling that in general the courts have recognized, in Rajudeen v. Canada (Minster of Citizenship and Immigration) (1984), 55 N.R. 129 (F.C.A.) 133; Retnam v. Canada (Minister of Employment and Immigration) A-470-89, May 6, 1991 (C.A.); Ovakimoglu v. Canada (Minister of Employment and Immigration) (1983), 52 N.R. 67 (F.C.A.) at 69 and Hassan v. Canada (Minister of Employment and Immigration), (1992), 141 N.R. 381 (FC.A.) that harassment in some circumstances may constitute persecution if sufficiently serious and it occurred over such a long period of time that it can be said that a claimant's physical or moral integrity is threatened. The incidents recited by the applicant in her testimony were no doubt unfortunate beginnings. They demonstrate repeated harassment in regards to the
whereabouts of her husband. However, the members of the CRDD made it clear that for them they were not serious or systematic enough to be characterized as persecution. However there was a serious possibility of persecution in the future. In light of the applicant's own testimony, where she states that she was questioned eight to ten times over a period of six months as the wife of a Shi'ite opponent, the CRDD's conclusion is an unreasonable one.
[13] The other two issues centre around the characterization of the actions of the applicant's husband. The applicant submits that she testified that her husband deserted the army to join the opposition forces and since a negative finding of credibility was not made, her testimony must be accepted as true. Thus, it is the applicant's opinion that the CRDD mischaracterized the applicant's husband as being a "deserter" when in fact, he had joined the opposition. As such, the documentary evidence presented was erroneously dismissed, even though it dealt with the situation facing family members of opposition forces.
[14] The applicant argues that the CRDD ignored her testimony that her husband had deserted the army to join the opposition forces in the south. However, reading the decision, it appears that the CRDD board did not believe it probable that her husband joined the opposition, particularly in light of the treatment received by her as compared to the documented treatment received by family members of those who
oppose the Iraqi government . Were the authorities to have actually believed that her husband had joined the opposition, in the CRDD's opinion, the treatment would have been harsh. The CRDD found that the applicant's treatment was not consistent with that received by family members of opposition forces and due to the lack of evidence as to the treatment faced by family members of deserters, the CRDD could not find that she faced more than a mere possibility of persecution. The CRDD erred in law, and in so doing, ignored the evidence and asked itself the wrong questions.
[15] After reading the transcripts of the hearing, it appears that the issue of whether the applicant's husband joined the opposition forces was a contested one, and was not simply an issue of the CRDD ignoring the applicant's testimony. Although the CRDD did not make an adverse finding of credibility, it appears from the following passage that they did not believe it plausible that the applicant's husband joined the opposition:
| Counsel apparently wishes us to make the inferential leap that all military deserters are considered to be political opponents and that their family members face a serious possibility of persecution in Iraq as a result thereof. This is something we cannot do, in the absence of any documentary evidence indicating that family members of deserters are being persecuted in Iraq, and in view of the claimant's own evidence that all that ever happened to her was to be questioned on occasion and not mistreated. [Emphasis added] |
[16] In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), the Appeal Division of this Court ruled that inferences made by the
CRDD will not be interfered with, unless it can be established that the inferences are so unreasonable as to warrant intervention. Justice Décary stated at page 316 that:
| 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 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 the appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. |
[17] Well, the CRDD had the applicant's unimpugned credible testimony, that: (i) the Ba'athists regarded her husband as an opponent of the régime; and (ii) he told her so, himself, in that letter.
[18] Now for the documentary evidence: Amnesty International (Tribunal record,
p. 98):
| Thousands of government opponents and their relatives, arrested in previous years remained held throughout 1993, among them, prisoners of conscience. |
| ... |
| Numerous new reports of torture and ill-treatment of [those] detainees were received. The majority of victims were Shi'a Muslims from southern cities and the marshes region. |
[19] Next: the U.S. Department of State Country Report (Tribunal record, p. 109):
| In his November report, the Special Rapporteur noted the Government's systemic use of physical and psychological torture, especially in southern Iraq. According to former detainees, torture techniques include: brandings, electric shocks to the |
| genitals and other areas, beatings, burnings with hot irons, suspension from ceiling fans, dropping acid on the skin, rape, breaking of limbs, denial of food and water, and threats to rape or otherwise harm relatives. ... |
[20] Exhibits A and A1 to the affidavit of Faaka Al-Sadr who is proficient in both English and Arabic are found at pp. 076 to 078 of the AR. On p. 077 is a photocopy of an article in Tarik Al-Shah newspaper, mid-August 1996. On p. 078 is the translation made by the deponent. The article's headline is: "Victims of Harassment and Persecution Which Never Ends" [sic]. The article describes horrors threatened to opponents of the régime and it contains this paragraph:
| What is regular nowadays is the threat of arresting a female member of the person's family. Noticeably, this exactly means sexually assaulting the daughter, wife, sister...etc. The citizen who is under intimidation has no option but to surrender. |
[21] This file is full of reports of sickening, beastly savagery inflicted on Saddam Hussein's opponents and their wives and relatives.
[22] The CRDD ignored the evidence of the husband's opposition to the régime. It ignored his opposition as a Shi'ite. Then it asked itself and the applicant for documentary evidence to show how the wife of a simple apolitical deserter would be at risk of persecution, and held the applicant not to be a Convention refugee! This
case evinces similarities with Ravji v. Minister of Employment and Immigration, A-897-92, August 4, 1994, a decision of Madam Justice McGillis.
[23] The CRDD's decision in file T96-01863 dated January 14, 1997, released on January 28, 1997 is quashed. The applicant's application is allowed.
[24] The applicant's claim to be a Convention refugee is referred back to a differently constituted panel of the CRDD for determination in accordance with the law and the observations expressed in these reasons, which require attention to the evidence.
"F.C. Muldoon"
Judge
Toronto, Ontario
January 8, 1998
FEDERAL COURT OF CANADA
Date: 19980108
Docket: IMM-652-97
BETWEEN:
SUHAD MOHAMED KADHM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-652-97
STYLE OF CAUSE: SUHAD MOHAMED KADHM
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JANUARY 7, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MULDOON, J.
DATED: JANUARY 8, 1998
APPEARANCES: Ms. Catherine Smee
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Ms. Catherine Smee
Barrister and Solicitor
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent