Ottawa, Ontario, August 9, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GEORGES ASSOUAD (a.k.a. Georges Rizkall Assouad)
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] A Board is under a duty to justify its credibility findings with specific and clear reference to the evidence, particularly when the evidence is cogent and relevant to the Applicant's allegations: Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800 (QL). This duty is particularly important when a claimant's credibility is affected by implausibility findings of the Board. In Leung v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 774 (QL), the Court stated at paragraph 15 of its reasons:
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility findings on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusion.
Plausibility findings should therefore be made only in the clearest of cases, that is, if the facts as presented are outside the realm of what could reasonably be expected: Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (QL).
As stated in paragraph 16 by Justice Edmond Blanchard in Mahmood v. Canada (Minister of Citizenship and Immigration), 2005 FC 1526, [2005] F.C.J. No. 1883 (QL).
JUDICIAL PROCEDURE
[2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated September 22, 2005, wherein it was decided that the Applicant is not a Convention refugee nor a person in need of protection according to sections 96 and 97 of IRPA.
BACKGROUND
[3] The Applicant, Mr. George Assouad, is a 66 year old Christian citizen of Lebanon. He joined the Lebanese Army voluntarily in 1959 and served until 1963. He was married in 1964 and he and his wife had six children. Mr. Assouad was a member of the Phalange Party and worked as a guard during the civil war.
[4] According to Mr. Assouad, after the Israeli pullout from Southern Lebanon in May 2000, his brother received a telephone call from his son (Mr. Assouad’s nephew) stating that he was in Israel with other former South Lebanese Army (SLA) members. Mr. Assouad alleges that he also spoke to his nephew, who thanked him for sending money.
[5] Mr. Assouad alleges that after this telephone conversation, members of Hizbollah abducted his brother. According to Mr. Assouad, his brother later died from injuries incurred during his abduction.
[6] Mr. Assouad also alleges that he was attacked after his brother’s funeral. He was beaten and was treated by a dentist. He was accused of being an agent of Israel and he believed his life was in danger. He also received numerous threats, in writing and by phone.
DECISION UNDER REVIEW
[7] The Board determined that Mr. Assouad does not fit any of the categories considered at risk in Lebanon today. Although there is evidence of several arrests of politically active persons, Mr. Assouad has not established that he is similarly situated to these people. Moreover, the Board was not satisfied that Hizbollah’s gain in recent elections changed the situation for Mr. Assouad.
[8] The Board concluded that Mr. Assouad had not, on a balance of probabilities, established that he is sought by Hizbollah or the Lebanese authorities. Therefore, the Board did not believe that there is a serious possibility that Mr. Assouad would be persecuted in Lebanon or that he would be subjected personally to a risk to his life or to cruel and unusual treatment or punishment or to a danger of torture.
ISSUES
[9] According to Mr. Assouad’s Memorandum of Argument, there are three issues in this application:
1. Whether the Board erred in failing to assess the evidence specific to Mr. Assouad, namely the dental report and death certificate.
2. Whether the Board erred in its finding that Mr. Assouad did not have the profile of someone at risk in Lebanon and that his sons’ safety in Lebanon undermined his objective fear.
3. Whether the Board erred in its failure to assess Mr. Assouad’s testimony in order to determine if his fear was well-founded.
ANALYSIS
Statutory scheme
[10] According to section 96 of IRPA, a person is a refugee if they fear persecution by reason of their race, religion, nationality, membership in a particular social group or political opinion:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[11] Subsection 97(1) of IRPA states the following:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country;
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country;
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes – sauf celles infligées au mépris des normes internationales – et inhérents à celles-ci ou occasionnées par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Standard of review
[12] Credibility findings by the Board are entitled to the highest degree of deference from this Court as the Board is in the best position to assess the credibility of the claimant. Questions of fact, such as credibility and evaluation of the evidence, are reviewed on a standard of patent unreasonableness. (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), [1993] F.C.J. No. 732 (QL), at paragraph 4; Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25, [2004] F.C.J. No. 17 (QL), at paragraph 31; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL), at paragraph 14)
Failure to assess evidence
[13] Mr. Assouad submits that the Board erred in ignoring evidence, in not analysing and referring to relevant claimant-specific evidence, namely the death certificate of Mr. Assouad’s brother and the dental report indicating his injuries at the time Mr. Assouad claimed to have been assaulted.
[14] As stated in Kouassi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1199 (QL), at paragraphs 13-14:
In addition, the panel did not make any reference in its reasons to the medical report filed in evidence. That report is dated July 16, 1996, and was prepared by Dr. Pierre Dongier, who examined the applicant here in Canada. The report corroborates the applicant’s allegations, to a point. Dr. Dongier states that the applicant [translation] “presents physical marks, as well as psychological symptoms, that are consistent with his description of the violence he says was done to him”.
Although the panel did not have to comment on all the evidence in the record, it did, in my opinion, have to address this report and explain why it placed no weight on it. As Gibson J. stated in Atwal v. Canada (Secretary of State):
It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal’s decision.
[15] The following principle in Min v. Canada (Minister of Citizenship and Immigration), 2004 FC 1676, [2004] F.C.J. No. 2028 (QL), at paragraphs 5-9, applies here:
The Board is not obliged to refer to every document before it. However, the more important the document, the greater the duty on the Board to consider it expressly: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL). With respect to medical and psychological reports, the Board must consider them if it makes credibility findings on grounds for which that evidence is relevant: Bernadine v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1187, [2002] F.C.J. No. 1590 (T.D.) (QL).
For example, before the Board draws an adverse inference from a claimant’s demeanour, it must consider an expert’s opinion that helps provide an explanation for that behaviour: Sanghera v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 87 (T.D.) (QL). On the other hand, if the Board does not believe that a psychological opinion explains the claimant’s testimony, it is entitled to give it little or no weight: Dekunle v. Canada (Minister of Citizenship and Immigration), 2003 FC 1112, [2003] F.C.J. No. 1403 (QL).
The psychologist who interviewed Mr. Min concluded that he has difficulty concentrating and had memory problems. He sometimes has trouble understanding questions. He would “not be able to tolerate interrogation during the hearing” because he has flashbacks and suffers extreme stress when questioned.
The Board discounted Mr. Min’s evidence because he gave inconsistent accounts of how he acquired his identity documents. It considered some of his explanations to be implausible, especially considering his level of education. Overall, it found that his evidence “stretches the boundaries of credibility” and was “entirely without trustworthiness”. Further, it characterized Mr. Min himself as “manipulative” and “deceitful”.
The Board clearly arrived at a very negative assessment of Mr. Min’s evidence. However, given the content of the psychologist’s report, the Board had a duty at least to consider whether the factors cited in that report explained, in whole or in part, the irregularities in Mr. Min’s evidence. In fact, the Board did not refer to the report at all, even though the psychologist’s assessment had figured prominently in Mr. Min’s written submissions to the Board.
[16] The Board made no negative credibility findings about Mr. Assouad’s brother’s death or his own subsequent assault and so it implicitly found him to be credible about these events which formed the basis for his claim. The evidence mentioned above, the death certificate and dental report, thus provided independent corroborative evidence of Mr. Assouad’s fear of Hizbollah and his objective risk. The Board erred in failing to assess it:
The applicant maintains that the panel ignored the medical report prepared by a Canadian doctor that corroborated her allegations of abuse. In fact, the panel does not comment on this matter. However, the medical report is important evidence that can affect the panel’s evaluation of an applicant’s claim and the credibility of his or her allegations.
In Mahanandan, the Federal Court of Appeal indicated that when documentary evidence is presented that could influence the way in which the panel handles the claim, the panel must indicate its impact on the applicant’s claim.
We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board’s appreciation of an Appellant’s claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence has upon the Applicant’s claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
In Soma, Mr. Justice Cullen specified that the panel must comment on documentary evidence when it directly contradicts the decision made.
Although it would be preferable for the Board to address adverse documentary evidence, it is under no obligation to do so unless the evidence is directly contradictory (to the Board’s conclusion).
In the case at bar, the evidence in question is a letter from a doctor that, among other things, indicates the presence of two scars: one on the applicant’s right knee and the other on the left thigh “that the patient attributes to being beaten with a belt”. In conclusion, he states that “the two scars are consistent with her description of the violence she suffered”.
Of course, as the respondent’s counsel points out, evaluation of the evidence is a matter within the panel’s jurisdiction. However, the panel must first consider the record evidence and comment on it when it may have a serious impact on an applicant’s claim. If the panel decides to disregard the evidence, it must clearly state the reasons why it placed no weight on it.
(Berete v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 359 (QL), at paragraphs 4-8)
[17] Even if the Board found Mr. Assouad not credible about his brother’s injury and subsequent death as well as his own beating and his fear of Hizbollah, it had the duty to consider the dental report corroborating the assault and his brother’s death certificate. In failing to do so, it committed a reviewable error:
The Board had before it two medical reports from a municipal polyclinic in Kharkov, Ukraine that related to the alleged post-1986 domestic abuse. The Board gave no weight to the medical document because, in its view, the applicant had not provided credibile [sic] or reliable evidence concerning the alleged post-1986 domestic abuse. A perusal of the medical reports indicates that many of the notations refer to injuries consistent with physical abuse (injuries to left part of the thorax, soft facial tissues injury and numerous haematomas in the area of the upper extremities). Dismissing the medical reports outright, without determining whether they enhanced the credibility of the applicant’s testimony regarding the alleged beatings or provided independent substantiation of harm amounting to persecution was patently unreasonable. As held in Vijayarajah v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 731 (T.D.) (QL), Seevaratnam v. Canada (Minister of Citizenship and Immigration), 167 F.T.R. 130, and Baranyi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 987 (QL), 2001 FCT 664, even if the Board considers an applicant not to be credible, it must still consider the documentary evidence. Here, the Board erred in using its negative credibility finding as reason to place no weight on potentially crucial documentary evidence, given the nature of the applicant’s claim and testimony.
(Voytik v. Canada (Minister of Citizenship and Immigration), 2004 FC 66, [2004] F.C.J. No. 50 (QL), at paragraph 20)
Assessment of objective fear
[18] The Board erred in its finding that he did not have the profile of someone at risk in Lebanon and that his son’s safety in Lebanon undermined his objective fear. In its analysis of this issue, the Board took into account irrelevant considerations.
[19] Firstly, Mr. Assouad is not similarly situated to former SLA members in Lebanon who are now safe. He was never a member of this group. He fears Hizbollah as a suspected collaborator with Israel after the SLA had disbanded in 2000. Mr. Assouad did not ask for “forgiveness” for his contact with his nephew in Israel or his financial assistance to him. Therefore, he is not part of the “not at risk” group in Lebanon. Furthermore, his sons’ affiliation with the SLA and the previous President of Lebanon is irrelevant to his current risk.
[20] The Board also erred in ignoring documentary evidence about the treatment of suspected collaborators with Israel. In Raveedran v. Canada (Minister of Citizenship and Immigration), 2003 FCT 49, [2003] F.C.J. No. 116 (QL), at paragraph 54, the Federal Court has warned against using risk profiles in assessing objective fear:
The conclusion of the panel that the applicants did not “fit the profile” of LTTE supporters has relatively little meaning without at least some explanation of what the “profile” is like, in the view of the panel. In addition, the evidence suggests that Sri Lankan authorities do not make a concerted attempt to “profile” who does or does not support the LTTE. The documentary evidence shows that arrests have been made against persons who are simply suspected of supporting the LTTE in any manner. No reference in these reports is made to any profile.
[21] A Board is under a duty to justify its credibility findings with specific and clear reference to the evidence, particularly when the evidence is cogent and relevant to the Applicant's allegations: Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800 (QL). This duty is particularly important when a claimant's credibility is affected by implausibility findings of the Board. In Leung v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 774 (QL), the Court stated at paragraph 15 of its reasons:
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility findings on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusion.
Plausibility findings should therefore be made only in the clearest of cases, that is, if the facts as presented are outside the realm of what could reasonably be expected: Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (QL).
(Paragraph 16 of Mahmood, above.)
[22] As stated, specific and clear reference to the evidence in respect of credibility findings must take into account that which is pertinent to the allegations of the Applicant. Those cannot be simply set aside without, at least, some comment:
Hezbollah-Radical shi’a group formed in Lebanon; dedicated to the creation of Iranian-style Islamic republic in Lebanon and removal of all non-Islamic influences from the area. Strongly anti-West and anti-Israel. Closely allied with, and often directed by, Iran …
Affidavit of Sujani Widyaratne, Exhibit “H”, ICC Country Report, May, 2003, p.66, 1st para.
Political activist Ramzi’ Irani has not been seen since 7 May, when he left work for his home in Central Beirut. He works on student affairs for the unauthorized Lebanese Forces (LF), and Amnesty International fears that he has been detained incommunicado, and may be tortured to force him to reveal information about the LF’s activities…
The security forces rounded up hundreds of LF members across the country including students, in August and September 2001. Most were released, but some were held incommunicado at the Ministry of Defence detention centre, where they were reportedly tortured and ill-treated. Among them was a leading member of the organization, Tawfq al-Hindi, who was sentenced to three years’ imprisonment in March 2002, after an unfair trial before the Military Court, on charges including “contacts” with Israel. He was the political advisor to Jailed LF leader Samir Geagea.
Affidavit of Sunjani Widyaratne, Exhibit “L”, Amnesty International, Urgent Action, May 10, 2002, emphasis added, p.77, 1st and 4th para.’s
On 16 April 2002, the Website Lebanon.com reported that three anti-Syrian defendants, including Toufic Hindi, an advisor to the banned Christian Lebanese
Forces (LF), would be retried for their alleged contacts with the “enemy” Israel. The three had been arrested during anti-Syrian protests in August 2001…
Affidavit of Sujani Widyaratne, Exhibit “I”, Immigration and Refugee Board Response to Information Request, LBN 39107. E, emphasis added, p. 69, 3rd para.
Tawfiq al-Hindi, a leading member of the unauthorized Lebanese Forces Party (LFP), was sentenced to 15 months in prison by the Military Court of Appeal on 11 July. At a separate trial on 10 July, the Military Court in Beirut acquitted Nadim Latif, a leading member of the Free Patriotic Movement (FPM), of all charges including “defamation of the Syrian Army”.
Following an unfair trial in March, the Military Court found Tawfiq al-Hindi guilty of “contacting” Israel and “providing the enemy with information detrimental to Lebanon’s relations with its neighbours”. He was allegedly tortured and ill-treated in order to make him “confess” to the charges, which he later denied before the Military Court of Appeals.
Amnesty International issued a public statement expressing concern at the allegations of torture and ill-treatment of Tawfiq al-Hindi and his co-defendants, journalists Antoine Bassil and Habib Yunes during their pre-trial incommunicado detention…
Affidavit of Sujani Widyaratne, Exhibit “M”, Amnesty International Urgent Action, July 15, 2002, emphasis added, p.78, 1st 3 para.’s
…The Government did not attempt to disarm Hizballah, a terrorist organization operating in the region…
The Government and Syrian intelligence services used informer networks and monitored telephones to gather information on their perceived adversaries. The Army Intelligence Service monitored the movements and activities of members of opposition groups (see Section 2.b.). The Government conceded that security services monitored telephone calls but claimed that monitoring occurred only with prior authorization from competent judicial authorities…
Well-founded fear
[23] Finally, the Board erred in not assessing Mr. Assouad’s testimony as to whether his fear was well-founded. As mentioned above, the Board implicitly found his evidence credible regarding his assault, his brother’s abduction and death from injuries inflicted by Hizbollah. Therefore, the Board had the obligation to state why his testimony did not support his objective fear. It failed to do so and committed a reviewable error:
Moreover, the Board based its decision on the documentary country condition evidence, stating that “… the documentary evidence of disinterested sources indicates that the claimants do not face a reasonable chance or a serious possibility of persecution … because of their ethnicity.”
In Coitinho v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1269, 2004 FC 1037, Justice Snider addresses this type of reasoning, stating:
The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants’ evidence is not credible, the Board concluded that it “gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing”. This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant’s because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant’s evidence. The Board’s decision in this case does not inform the reader why the Applicants’ evidence, when supposed to be presumed true (Adu v. Minister of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.)), was considered suspect.
The Board made a similar error here. Moreover, in this case the Board did not simply fail to make a finding of non-credibility in preferring the independent documentary evidence. The Board actually made an express finding that Mr. Ramsaywack was a credible and trustworthy witness, and then went on to either ignore or reject his evidence on this point in favour of the documentary evidence, without any explanation for so doing. In such circumstances, the Board’s decision cannot stand. (Emphasis that of the Court)
(Ramsaywack v. Canada (Minister of Citizenship and Immigration), 2005 FC 781, [2005] F.C.J. No. 999 (QL), at paragraphs 13-15)
CONCLUSION
[24] As it does not seem to be based on the evidence which was before the Board and some evidence seems to have been ignored, this decision cannot stand. It should be returned to the Board for redetermination by a differently constituted panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the matter be remitted for redetermination by a differently constituted panel.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6246-05
STYLE OF CAUSE: GEORGES ASSOUAD
(a.k.a. Georges Rizkall Assouad)
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 18, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Ronald Shacter
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Ms. A. Leena Jaakkimainen
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SOLICITORS OF RECORD:
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RONALD SHACTER Toronto, Ontario
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JOHN H. SIMS, C.R. Deputy Attorney General of Canada
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